What You Should Know About the Impact of the Lapse in Appropriations on EEOC Timelines
February 5, 2019
The US Equal Employment Opportunity Commission was subject to the lapse in appropriations that occurred from December 22, 2018 to January 26, 2019, which required the EEOC to shut down most operations and services. (Note: The EEOC accepted charges during this time to preserve individuals’ rights under the law.)
The questions and answers below are intended to address concerns regarding filing deadlines and matters that were scheduled during the partial government shutdown. Please know that the EEOC’s offices and staff are working diligently to resume operations and reschedule matters as soon as is possible.
PRIVATE SECTOR CHARGES AND INVESTIGATIONS
Filing a Charge of Discrimination
Q. What should I do if my intake appointment was supposed to take place while the EEOC was closed due to the lapse in appropriations?
A. EEOC staff are contacting each person who had an intake appointment scheduled between December 22, 2018 and January 28, 2019. The EEOC will work with you to reschedule your appointment for another day and time. Please do not attempt to reschedule your appointment through the online Public Portal.
Q. What should I do if I need to schedule an initial intake appointment?
A. EEOC’s Public Portal has re-opened. Click here to enter the EEOC Public Portal and select “Filing with EEOC,” which will guide you through the process of registering and scheduling either an in-person or a telephone appointment through the Public Portal.
Q. I mailed a letter to the EEOC early in January to file a charge of discrimination, but haven’t received any acknowledgement. What should I do?
A. EEOC staff are contacting individuals who mailed or delivered correspondence to EEOC offices seeking to file charges during the partial government shutdown to follow up with them.
Open Charges of Discrimination
Q. What should I do if I had a mediation previously scheduled to take place while the EEOC was closed during the lapse in appropriations?
A. EEOC staff are contacting parties whose mediations were cancelled due to the lapse in appropriations. The EEOC will work with you to reschedule the mediation for another day and time.
Q. What should I do if the deadline to submit information to the EEOC occurred while the EEOC was closed?
A. For any documentation or responses due to the EEOC between December 22, 2018 and January 28, 2019, we are extending your submission deadline to February 12, 2019. This extension applies to both Respondents and Charging Parties.
Q. What should I do if I am an employer who was issued a notice of a charge of discrimination while the EEOC was closed - when do I need to submit the Position Statement?
A. If the EEOC provided you with a notice of a charge of discrimination at any time between December 22, 2018 and January 28, 2019, your deadline to submit the position statement has been extended to March 1, 2019. Please make your submission through the Respondent Portal.
Q. What should I do if I am a witness in an ongoing EEOC investigation and was scheduled to speak with an EEOC staff member while the agency was closed?
A. EEOC staff are contacting witnesses who were scheduled to speak with EEOC representatives at any time between December 22, 2018 and January 28, 2019. The EEOC will work with you to reschedule your appointment for another day and time.
Closed Charges of Discrimination
Q. Will my right to sue deadline change because the EEOC was closed because of the lapse in appropriations?
A. No. Your right to sue deadline is not affected by the lapse in appropriations. Once you receive a Notice of Right to Sue, you must file your lawsuit within 90 days. This deadline is set by law. If you don't file in time, you may be prevented from going forward with your lawsuit.
Q. I submitted a request for reconsideration during the lapse in appropriations and my right to sue will expire soon. When will the EEOC respond to my request and can my right to sue deadline be extended?
A. The EEOC cannot waive or extend your deadline to file a lawsuit based on your charge. While office Directors take every effort to respond to requests for reconsideration in a timely manner, we cannot guarantee you will receive a response before your right to sue expires. If you don't file a lawsuit within 90 days of receiving your Notice of Right to Sue, you may be prevented from going forward with your lawsuit.
FREEDOM OF INFORMATION ACT (FOIA) REQUESTS
Q. How has the lapse in appropriations affected the time it takes EEOC to process my request?
A. All FOIA requests are processed as quickly as possible. Given the large number of requests received during the five-week government shutdown and our inability to process FOIA requests during the shutdown, there may be a delay in fulfilling your request.
1. Charge File Requests
Please remember that if you received a Notice of Suit Rights, your 90-day time period to file in court is not extended because of the shutdown or because you have a FOIA request pending for your charge file. Obtaining a copy of the disclosable portions of your charge file is not required to file a lawsuit in federal court, or as permitted under your state’s law(s).
2. All FOIA Requests
FOIA requests submitted electronically during the furlough were received as of the date on the request or appeal; FOIA requests received by mail during the furlough were received on January 28, 2019, the date the EEOC reopened.
FEDERAL SECTOR COMPLAINTS, HEARINGS AND APPEALS
The EEOC will adjust federal sector deadlines that were affected by the lapse in appropriations from December 22, 2018 to January 28, 2019. This is a change from information that previously appeared on EEOC’s website.
Federal Sector Complaints
Q. What should I do if I needed to file a charge of discrimination against my agency while EEOC was closed during the lapse in appropriations?
A. To make matters simple, the EEOC will assume that all complaint processing time deadlines that fell within the shutdown period were tolled. Additionally, the EEOC’s FedSEP and Complainant Portals were unavailable. Therefore, all deadlines that fell within December 22, 2018 through January 25, 2019 will be extended for 40 calendar days from the date of the original deadline. This means that all relevant complaint processing deadlines (counseling, investigations, FADs) are due 40 calendar days from their original due date.
Federal Sector Hearings
Q. What should I do if I had a hearing scheduled while the EEOC was closed due to the lapse in appropriations?
A. Staff members at the EEOC are contacting all parties who had federal sector hearings scheduled anytime between December 22, 2018 and January 28, 2019. The EEOC will work with you to reschedule the hearing.
Q. What should I do if my deadline for submitting documentation or a response to a motion related to my federal sector hearing was during the lapse in appropriations?
A. The EEOC’s FedSEP portal has re-opened and is available for your use at https://egov.eeoc.gov/FedSep/jsp/secure/login.jsf. All federal sector hearings deadlines falling between December 22, 2018, and January 28, 2019, are extended by 40 days.
Hearings stage deadlines may be further adjusted by order of the Administrative Judge. Please note that the 40 days began to run on the day each deadline originally fell—this does not mean that each deadline starts over today. For example, if an appeal brief was due on January 3, 2019, it is now due on or before February 12, 2019.
Federal Sector Appeals Deadline
Q. What do I do if I needed to provide material to the EEOC as part of my appeal of an agency decision in the federal sector process during the lapse in appropriations?
A. The EEOC will extend all deadlines at the appeals stage (such as filing notices of appeal, briefs, requests to reconsider) that fell within the shutdown period by 40 calendar days from their original deadline.
It is important to note that the 40 days began to run on the day each deadline originally fell – this does not mean that each deadline starts over today. For example, if an appeal brief had been due on January 3, 2019, it is now due on or before February 12, 2019.
These extensions for the federal sector administrative complaint process apply to all federal agencies and parties operating under 29 CFR 1614, regardless of how, if at all, they were affected by the lapse in appropriations.
EEO-1 SURVEY
Q. When will I be able to submit EEO-1 data with the EEOC?
A. Because of the lapse in appropriations, the opening of the EEO-1 has been postponed until early March 2019. The deadline to submit EEO-1 data will be extended until May 31, 2019.
The EEO-1 is an annual survey that requires all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a federal contract, subcontract or purchase order amounting to $50,000 or more to file the EEO-1 report. The filing of the EEO-1 report, is required by federal law per Section 709(c), Title VII of the Civil Rights Act of 1964, as amended; and §1602.7-§1602.14, Title 29, Chapter XIV of the Federal Code of Regulations.
Details and instructions for the 2018 EEO-1 filers, including the exact date of the survey opening, will be forthcoming. For further information about the survey, please refer to the EEO-1 website at https://www.eeoc.gov/employers/eeo1survey/index.cfm in the coming weeks for updates on the new schedule.
For general inquiries, or if you have an EEO-1 company contact update, please send an email to E1.Techassistance@eeoc.gov. If your company has experienced any mergers or acquisitions between January 2018 and December 31, 2018, please email E1.Acquisitionsmergers@eeoc.gov. Any spinoff-related emails should be sent to E1.SPINOFFS@EEOC.GOV.
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