You worked for a company for three years and had outstanding performance reviews. But then, you got a new regional manager. And that manager immediately started behaving inappropriately. He hit on you all the time. He was constantly asking you out for drinks. He started making inappropriate sexual comments around you. You rejected his advances. And then, like magic, you went from being a top performer to needing major improvement just to keep your job. You finally went to HR to report the entire situation. And, a couple weeks later, you were fired. The company offered you two weeks’ of severance pay. Fortunately, you didn’t sign that agreement. To you, two weeks just didn’t seem reasonable based on all of the facts. You did some research and figured out that you had to file a charge of discrimination with the EEOC. And either you did that on your own, or, you were able to find a lawyer to help you. And now, you are in limbo. You are playing the waiting game. Months have gone by. Nothing has happened. Apparently, you just have to keep waiting until the EEOC issues you a “Right to Sue Letter” or “Notice of Right to Sue” —- right? No. Completely wrong.
The EEOC Process & Right to Sue Letters
I’ll be blunt: The entire EEOC process is basically just a hoop that you have to jump through. The legal system is basically set up to benefit companies and to put employees at a disadvantage. So, naturally, the system creates hoops for employees to jump through. The EEOC process actually does prevent a fair number of employment lawsuits. People forget to file with the EEOC or blow the filing deadline. And, as a result, they cannot pursue a lawsuit. They literally lose all their legal rights. Believe it or not, that is actually the main point of the whole EEOC process: To create more obstacles for employees and prevent them from going straight to court. Luckily, you filed an EEOC charge on time. And now, you’re waiting. But you don’t have to.
The conventional wisdom is that on most employment discrimination claims (i.e. Title VII), you have to file a charge with the EEOC and wait at least 180 days for the EEOC to investigate. According to that conventional wisdom, only after 180 days can you request a Notice of Right to Sue. And many lawyers suggest that if you violate this rule, you will risk getting your case dismissed. That is not really true.
In most cases, you can actually go to the EEOC and request a right to sue letter long before the 180 days expires. In fact, we have some cases where we have requested a right to sue letter only weeks after filing an EEOC charge — and obtained one. All you have to do is send the EEOC an email and tell them you want a right to sue letter. I have never once made that request and had the EEOC tell me no. Why is this? Because the EEOC is completely swamped with cases. So, most of the time, if you are willing to take a case off of their docket (and save them extra work), they are happy to oblige.
Why Most Lawyers Don’t Speed Up the Process
The reason why most lawyers don’t do this is pretty obvious: Once you obtain a Notice of Right to Sue from the EEOC, you only have 90 days to file a lawsuit. If you don’t file your lawsuit within 90 days, then it’s too late and your rights disappear. A sad truth about the legal profession is that many lawyers are completely overwhelmed and running from one matter to the next. They aren’t voluntarily asking for another matter that has a 90-day deadline. They are already scrambling to meet their existing deadlines. In my view, that reflects a poorly run law firm that is probably understaffed. The point being: Most law firms don’t request an early Right to Sue because then they are on the clock. So, instead of getting an early Right to Sue and aggressively pushing forward with the case, most lawyers are content to wait 6 months or a year while the EEOC goes through the motions.
The Advantages of Not Waiting the 180 Days
Don’t try this at home. If you are a lawyer reading this, then go right ahead. You’re a lawyer and you understand what you’re doing. If you are a client or employee reading this and you are not represented by a lawyer: Don’t request a Right to Sue without first obtaining legal counsel. Because if you get a Right to Sue before you get a lawyer, you are already on the clock. And many lawyers in this space will reject even good cases and good clients if there is only 30 or 40 days left on the clock to file a lawsuit (and that is totally reasonable of them).
But: Provided you are a lawyer or understand the above, there can be significant benefits to obtaining an early right to sue letter.
Representing Employees 101: Speed Is an Advantage
I have represented thousands of employees and litigated hundreds of cases. Literally. One of the things I have learned over the years: Speed is an advantage — Especially when representing employees in employment discrimination or wrongful termination cases. In these types of cases, companies love to delay. Remember that: Corporate defendants always love to delay. Delay plays into their hands. Corporate defendants and their BIGLAW lawyers will almost always drag things out. Why? Several reasons.
(1) If it’s not imminent, it’s not real. If something is not an immediate threat, it gets pushed off and not taken seriously. Companies and corporate defense lawyers tend to take immediate threats more seriously. And an EEOC investigation generally is the total opposite of an imminent threat. Think about it: You file an EEOC charge. The company has several weeks to respond — or not. Companies routinely ignore EEOC charges and don’t even submit a position statement. I have a recent case where a major airline didn’t even bother to respond to the EEOC charge. Why? Companies don’t take EEOC charges or investigations seriously. In fact, companies basically think to themselves, “Ok. The employee filed an EEOC charge. We have at least 6 months until this becomes real.”
(2) Corporate defendants routinely lie. Yes, I said it: Companies lie all the time — because they often get away with it. They lie. They fabricate favorable evidence. They destroy damaging evidence. I’m just a truth teller. This is the real world, not a Disney movie. With 6 months lead time, companies can and will create a plan, launch a corporate cover up, destroy evidence, create a false narrative, etc. I have seen that movie before countless times. How do you counteract that? Speed.
That’s my two cents. On the plaintiff-side — representing employees in these types of cases, I believe speed is your friend. I believe speed gets you an advantage. I’m not just a lawyer. I’m a counselor, an advisor, and a fiduciary. I am always striving to pursue cases in a way that gets my clients the maximum advantage and leverage (while still being 100% above board). So that is why we do things this way.
Jonathan Pollard is an employment lawyer and the founder of the Fort Lauderdale, Florida law firm Pollard PLLC. Pollard and his colleagues have represented hundreds of employees in non-compete, trade secret, defamation, discrimination, and sexual assault cases. Pollard has appeared in or on the New York Times, Wall Street Journal, New York Post, NPR, PBS News Hour, The Guardian, Law 360, and more. Pollard has 80,000+ followers on LinkedIn, where he frequently posts about law, litigation, business, and life. The firm’s office can be reached at 954-466-3981.