Stephen A. Antonelli, Babst Calland Clements & Zomnir

By the time you are reading this, the federal government will have re-opened, at least temporarily. On Friday, Jan. 25, the president and Congress agreed to end a 35-day partial shutdown of the U.S. government—the longest in history—by passing a continuing resolution that will fund the government through Feb. 15.

Throughout the shutdown, there were numerous news stories concerning the deadlines by which federal courts were expecting to run out of money. As a result, employment litigators and other federal court practitioners questioned whether the shutdown would interfere with their clients' filing deadlines and how it might affect their practices, generally. Early on, courts were expected to run out of operating funds by Jan. 18. That deadline was later extended to Jan. 25 and then to Feb. 1. Luckily, courts were able to maintain mostly normal operations until the shutdown ended.

Likewise, the shutdown did not affect the National Labor Relations Board (NLRB) or the U.S. Department of Labor (DOL). The same cannot be said for the Equal Employment Opportunity Commission (EEOC), which closed on Dec. 22 and did not reopen until Jan. 28. For the 37 days in between those dates, the EEOC did not process new charges of discrimination and it did not investigate pending charges.

According to the EEOC's website, during the shutdown, most services were unavailable. Its toll-free phone numbers were unstaffed, its digital portals were inaccessible, and intake interviews were cancelled (unless a charging party was in danger of missing a filing deadline). In other words, unless a deadline was nearing, if parties to a charge of discrimination had questions about the status of a charge, those questions were likely unanswered during the shutdown.

Through a notice posted on its website, the EEOC provided information for potential charging parties as well as to those who had already filed and/or responded to a charge. Once posted, the website was not updated until the shutdown had ended and appropriations were enacted. A summary of the information provided by the EEOC is below.

Information Provided for Potential Charging Parties

The EEOC reminded potential charging parties that, generally, they must file charges of discrimination within 300 days of the incident of alleged discrimination. This deadline is only 180 days in states such as North Carolina, Georgia, Alabama, Mississippi or Arkansas, where there is no state fair employment practice agency. The EEOC clearly noted that the shutdown did not serve to extend these filing deadlines. As a result, it advised charging parties who were within 30 days of an expiring statute of limitations (or those who were unsure of a filing deadline) to immediately begin the process of filing a charge by downloading and submitting a pre-charge inquiry. The EEOC accepted pre-charge inquiries throughout the shutdown, but only via hand delivery, mail or fax because its online portal was not available.

The EEOC also advised potential charging parties who were within 30 days of a filing deadline of how to file a timely charge. Charges must be dated and signed in writing (not typed). They must also include the following:

  • The charging party's name, address and phone number;
  • The name, address and phone number of the respondent;
  • The adverse action the charging party believes was discriminatory, when it occurred and the reason it was taken; and
  • A request for the EEOC to take remedial action.

Information Provided for Parties to a Charge or Litigation

Despite the shutdown, employers were expected to comply with all deadlines for position statements and requests for i nformation. Employers who typically seek extensions of these deadlines were not likely to have their requests granted during the shutdown as the EEOC did not have adequate staff to consider such requests.

The EEOC advised charging parties who have received notice of their right to sue, that the time limits for commencing litigation in federal court were not suspended as a result of the shutdown. As a result, it advised that charging parties who fail to file suit within the applicable time period set forth in the dismissal notice will lose the right to do so.

All mediations—whether for private or public sector matters—that were scheduled to occur during the shutdown, were cancelled until further notice. Now that the EEOC has resumed operations, mediators will contact the parties in each matter to reschedule the mediation.

During the shutdown, the EEOC continued to accept but did not process Freedom of Information Act (FOIA) requests. Now that the EEOC has resumed operations, it will begin to respond to messages left for the FOIA Requester Service Center and the FOIA Public Liaison in the order in which the messages were received. Depending on the volume of messages received, it may take the EEOC as long as 10 business days (until Feb. 8) to respond to your message.

Finally, all litigation involving the EEOC as a party was suspended unless a continuance had not been granted by the court.

In short, the EEOC resumed operations—at least temporarily—on Jan. 28. Its employees will have more than a month's worth of “catch-up” work to do in addition to their normal responsibilities. Employees, employers and their respective counsel should expect significant delays as the EEOC processes and investigates a presumed backlog of charges of discrimination.

Stephen A. Antonelli is a shareholder in the employment and labor and litigation groups of the aw firm Babst Calland Clements & Zomnir. His practice includes representing employers in all phases of labor and employment law, as well as matters of general litigation. Contact him at [email protected].