A New York federal court recently ruled in Cecilia Prichard v. Long Island University that the U.S. Equal Employment Opportunity Commission (“EEOC”) must conduct a fulsome investigation of an employee’s allegations of discrimination before authorizing the employee to file a lawsuit in federal court. The decision directly conflicts with decisions issued in the Second, Ninth, and Eleventh Circuits, setting up a Circuit split ripe for resolution by the Supreme Court as to whether the EEOC charge investigation process is merely a check-the-box exercise or a Congressional mandate to thoroughly investigate employee claims of discrimination.

First, some procedural background: Before a U.S. employee may file a lawsuit alleging discrimination on the basis of race, sex, age, disability, and other protected statuses, they must first file a charge of discrimination with the EEOC. The charge-filing process allows the EEOC to investigate whether there is reasonable cause to believe discrimination occurred and, if the agency wishes, to pursue relief on the employee’s behalf. If the EEOC finds no reasonable cause to believe discrimination occurred, it will dismiss the charge and issue a Notice of Right to Sue (“NRTS”) to the would-be litigant. The NRTS is an administrative prerequisite to filing a lawsuit predicated on the allegations of discrimination therein.

Per federal regulations, the EEOC has 180 days from the date on which the employee files their charge to complete its investigation. When the EEOC concludes it will be unable to complete its investigation within 180 days, the EEOC may issue a NRTS without reaching a conclusion as to reasonable cause. Furthermore, at times, the EEOC will dismiss a charge and issue a NRTS upon request by an employee, even before the completion of the 180-day investigation period. It is these practices—bypassing thorough investigations in the interest of expediency—that have yielded legal challenges by employers that argue the agency is not authorized to forgo its investigatory responsibility.

Until now, most employer challenges alleging premature NRTS issuance have failed. But in Prichard, the U.S. District Court for the Eastern District of New York granted the employer’s motion to dismiss a disability discrimination lawsuit after the EEOC issued the employee a NRTS just 57 days after she filed her charge. The EEOC issued the NRTS on the basis that it reasonably believed it would not complete its processing of her charge within 180 days of the filing, but the employer argued that the plaintiff had failed to satisfy the statutory precondition that her charge be pending with the EEOC for at least 180 days. The court agreed with the employer, concluding that the EEOC exceeded its statutory authority by issuing a NRTS prior to the end of the 180-day review period, rendering the NRTS invalid.

Although the employer’s victory in Prichard may be pyrrhic—the court also ruled that Ms. Prichard may refile her action if the EEOC provides her with a valid NRTS after the 180-day investigation period—the decision is a check on employees (at least in the Eastern District of New York) who seek to circumvent the EEOC investigation process in order to expedite their day in court. Employers considering a procedural challenge to a premature discrimination lawsuit are encouraged to review the evolving body of decisional law on this subject in their respective jurisdictions.