Applying Loper Bright to EEOC “Right to Sue” Notices

In Prichard v. Long Island University, a U.S. District Court for the Eastern District of New York relied on Loper Bright v. Raimondo to invalidate an Equal Employment Opportunity Commission (EEOC) regulation that had allowed the agency to issue “right to sue” notices before 180 days had passed.  The decision made clear that EEOC regulations should not be given Chevron deference and that courts must exercise independent analysis in interpreting and applying EEOC regulations.

The court explained that “Title VII [of the Civil Rights Act of 1964] directs the EEOC to issue a RTS [Right to Sue] letter in two circumstances: if the EEOC dismisses the case or if 180 days have passed since the filing of a complaint and the EEOC has not completed its investigation.”  In this case, the EEOC had not dismissed the case but nevertheless issued the RTS notice after only 57 days.  In doing so, it relied on an EEOC regulation that allowed it to issue RTS notices when it has “determined that it is probable that the Commission will be unable to complete its administrative processing of the charge within 180 days from the filing of the charge.”  29 C.F.R. § 1601.28(a)(2).

The court noted that the circuits were split on whether this regulation was valid.  Those that had upheld it had done so by finding “the statute ambiguous and deferring on to [sic] the agency’s interpretation under Chevron.”  Explaining that, after Loper Bright, Chevron deference was no longer appropriate and therefore “[c]ourts, not agencies, determine statutory meaning,” the court found “the EEOC’s rule authorizing early RTS letters conflicts with the statutory text” because the regulation granted the EEOC additional authority beyond the statute’s two express conditions for issuing the notice (dismissal of the case or passage of 180 days).

Notably, in rejecting the plaintiff’s counter-argument, the court relied heavily on Loper Bright:

[Plaintiff’s] assertion that deference is due the EEOC’s interpretation of the statute effectively urges this court to operate in a parallel universe in which Loper Bright had been decided the other way. No case that [Plaintiff] cites (or that the Court has identified) sided with the EEOC on textual grounds without according deference: they either deferred to the agency pre-Loper Bright, or relied primarily on policy considerations. [Citations omitted]  Neither approach now suffices to overcome the plain text of the statute.