The 21st century has finally come to the Equal Employment Opportunity Commission. On May 6, the EEOC announced a pilot program in which allegedly aggrieved employees will be able to file charges of discrimination electronically, and employers will be able to respond electronically.
Eleven EEOC field offices will participate in the pilot, titled Act Digital. Both the Charlotte, North Carolina, office and the San Francisco district have gone live with the pilot. In late May, Denver, Detroit, Indianapolis and Phoenix followed suit. The EEOC intends to make “e-charges” available to all offices by October 2015.
Charges filed through Act Digital will no longer be sent via regular mail to employers with email addresses on file with the EEOC. Instead, the email address on file will be sent a notification a charge has been filed, and the employer can then download and view the charge, electronically review an invitation to mediate and respond, electronically submit a position statement, and provide and verify contact information.
No Shock Factor in White Officer’s ClaimsMichael Keefe, a white police officer for the City of Minneapolis, sued the city under the Civil Rights Acts of 1871 (Section 1983) and 1866 (Section 1981) alleging that it denied him substantive due process and retaliated against him because he attempted to vindicate the rights of four black officers under investigation for corruption. Keefe alleged that he unjustly suffered multiple adverse employment actions including suspension, removal from a task force, placement on administrative leave and demotion because the city wanted to discredit and silence him.Affirming the district court’s summary judgment to Minneapolis, the 8th Circuit Court of Appeals held that the multiple adverse actions experienced by Keefe did not violate his fundamental rights in a way that was “so egregious, so outrageous, that it may fairly be said to shock the contemporary consciences.” In addition, Keefe “failed to point to specific facts that discredit any of the defendants’ proffered explanations for the various employment decisions.” Keefe v. City of Minneapolis, No. 13-3069, 8th Circuit (May 11, 2015).IMPACT: Employees claiming race discrimination under Section 1983 must show that the adverse employment actions were so severe that they “shock the conscience.”Mark T. Kobata and Marty Denis are partners in the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago.
Employers should take care to make sure that any email address on file with the EEOC — particularly in the identified field offices — is the one through which they wish to receive notice of charges. A charge sent to an out-of-commission or an incorrect email address could result in an employer missing a filing and losing its opportunity to submit a position statement.
It is not clear at this stage whether employers will have the opportunity to log into any system to determine whether there are any outstanding charges against them. Hopefully, the EEOC’s system will be sufficiently robust to allow such double-checking.
The EEOC’s recently-published FAQ on Act Digital states that, if an employer has not logged in to review a charge within 10 days of the electronic notification, the EEOC will “attempt to reserve the notice of charge,” but it is unclear if that means a second electronic notice will be sent or the employer will receive a paper notice.
Employers should consider creating an account that is monitored by or accessible to multiple employees so that attritions, vacations or absences do not lead to the loss of precious time to respond to a charge. The EEOC will allow employers to opt out of the electronic charge filing system — at least for now.
Interestingly, in the system’s FAQ, the EEOC indicated that any documents, information and other evidence submitted through Act Digital will be confidential, but that it may share position statements with charging parties and their counsel. This may make it much easier and cheaper for employees and their lawyers to obtain the employer’s response and then dismiss the charge, a tactic many lawyers take to get a preview of the employer’s arguments.
Some employers may opt out just to avoid this potential for abuse by employee-side lawyers. The expectation is that charge filing will increase, because filing may become much easier and accessible to some people who may not have wanted to complete paperwork by hand or travel to an EEOC office to submit paperwork or sit for an intake interview.
Hopefully, the EEOC will build in additional tools to stem the filing of duplicative, baseless or untimely charges, but that — among many other things — remains to be seen.