  Proposed Change in EEOC Regulations Concerning Right-to-
           Sue Notices for Public Sector Employees
The Equal Employment Opportunity Commission proposal to amend its procedural regulations to allow
   the Commission to issue a right-to-sue notice where it has failed to make a reasonable cause
   determination within 180 days after the filing of a charge against a state or local governmental
   entity is not permissible under Title VII of the Civil Rights Act o f 1964 or the Americans with
   Disabilities Act of 1990.

                                                                                                       October 7, 1999

          M e m o r a n d u m O p in io n   fo r t h e   A c t in g A s s is t a n t A t t o r n e y G e n e r a l
                                            C iv il R ig h t s D iv is io n


   Y o u have asked for our opinion whether a change the Equal Employment
Opportunity Commission (the “ EEOC” or the “ Commission” ) proposes to its
procedural regulations is consistent with Title VII of the Civil Rights Act of 1964,
Pub. L. No. 88-352, tit. VII, 78 Stat. 241, 259, as amended (“ Title VII” ), and
the Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327,
328, as amended (the “ ADA” ).1 The Attorney General has the federal govern­
ment’s exclusive litigating authority in Title VII cases against state and local
governmental employers. See 42 U.S.C. §2000e-5(f) (1994). It has also been the
Attorney General’s role to issue right-to-sue notices in such cases, with one excep­
tion: under a current regulation, 29 C.F.R. § 1601.28(d) (1998), the EEOC may
issue right-to-sue notices in cases in which it dismisses claims against state and
local governmental entities based on specified grounds, such as a Commission
finding that there is no reasonable cause to proceed. See 29 C.F.R. §1601.18
(1998) (setting out grounds for dismissal). In letters to the Civil Rights Division
dated May 12 and November 18, 1997, the Commission has proposed amending
§ 1601.18 of the regulations to create an additional basis for dismissal where the
complainant has requested a right-to-sue notice and the EEOC determines that
there is no law enforcement reason to continue processing the charge. By virtue
of the current regulation permitting the EEOC to issue right-to-sue notices in
govemmental-entity cases resulting in dismissal, the proposed provision would
allow the EEOC to issue a right-to-sue notice on request when it has failed to
make a reasonable cause determination within 180 days following the filing of
a charge against a state or local governmental employer.2 You have raised the

   ■The procedures applicable under Title VII also apply under the ADA. See ADA, 42 U.S C § 12117(a) (1994).
Accordingly, the analysis herein focuses on T itle VII and does not separately discuss the ADA.
   2 The draft rule does not limit the EEOC’s dismissal authority to cases in which 180 days have elapsed, but
counsel for the Commission told this office that the draft rule was intended to be so limited, and that the text
could be am ended accordingly In light of an existing regulation, the proposed regulation would in any event allow
the EEOC to issue a nght-to-sue letter pnor to the expiration o f the 180-day period whenever an appropriate EEOC
official “ has determined that it is probable that the Commission will be unable to complete its administrative proc­
essing o f the charge within 180 days from the filing of the charge.” 29 C F.R. § 1601 28(a)(2) (1998).


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Proposed Change in EEOC Regulations Concerning Right-to-Sue Notices fo r Public Sector Employees


concern that such a procedure violates the plain language of section 706(f)(1)
of Title VII, 42 U.S.C. § 2000e-5(f)(l), which provides that notification of the
right to sue “ shall” be provided by “ the Commission, or the Attorney General
in a case involving a government, governmental agency or political subdivision.”
For the reasons set forth below, we conclude that, although the issue is a close
one, the EEOC’s proposal to take over this function from the Attorney General
is not permissible under Title VII or the ADA.

                                A. Statutory Background

   When Congress enacted Title VII in 1964, the statute applied only to private,
non-governmental employers. Moreover, the EEOC had no authority to sue in
its own name or to intervene in private suits; the sole governmental litigation
authority under Title VII rested with the Justice Department. 2 Barbara Lindemann
& Paul Grossman, Employment Discrimination Law 1525 (3d ed. 1996)
(“ Lindemann” ). In 1972, Congress extended Title VII to prohibit employment
discrimination by “ governments, governmental agencies, [or] political subdivi­
sions.” Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86
Stat. 103, 104 (the “ 1972 amendments” ). At the same time, Congress assigned
to the EEOC most of the Department’s former responsibilities under the statute
for litigation against private sector employers. See 42 U.S.C. §2000e-6(c) (1994).
With respect to governmental entities, however, Congress limited litigation
authority to the Justice Department. See 42 U.S.C. § 2000e-5(f); Lindemann, supra
at 1525-26.
   In furtherance of Congress’s new allocation of responsibilities between the
EEOC and the Justice Department, the 1972 amendments set up a detailed proce­
dural scheme for the processing of Title VII complaints. Under this scheme, all
charges concerning either private or governmental employers must be filed with
the EEOC. The EEOC is required to investigate all such charges and to make
a determination in each case (within 120 days if “ practicable” ) as to whether
there is reasonable cause to believe the charge is true. Where the EEOC finds
no reasonable cause, Title VII directs it to “ dismiss the charge and promptly
notify” the complainant and respondent of its action. 42 U.S.C. §2000e-5(b).
Where the EEOC determines that there is reasonable cause to believe that unlawful
discrimination occurred, the statute requires the Commission to seek voluntary
compliance through conciliation. Id. The statute sets no time limit on conciliation
efforts.
   Up to the conciliation stage, Title VII draws no distinction between complaints
against private and governmental employers. Failure to reach a conciliation agree­
ment, however, leads to a diverging allocation of further enforcement responsibil­
ities. While the Commission may, upon the failure of conciliation, bring a civil
action against “ any respondent not a government, governmental agency, or polit­

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ical subdivision,” it may “ take no further action” with respect to a complaint
involving a governmental entity, and must ‘‘refer the case to the Attorney General
who may bring a civil action.” 3 42 U.S.C. § 2000e-5(f)(l). In a case involving
a governmental entity, if the Justice Department has not filed a civil action within
180 days of the filing o f the complaint with the EEOC,4 the complainant is entitled
to a “ right-to-sue” letter, upon receipt of which the complainant has 90 days
to file his or her own suit in federal court. See 42 U.S.C. § 2000e-5(f)(l); 29
C.F.R. § 1601.28. Specifically, the pertinent sentence o f section 706(f) of the
statute provides:

          If a charge filed with the Commission pursuant to subsection (b)
          of this section is dismissed by the Commission, or if within one
          hundred and eighty days from the filing of such charge or the
          expiration of any period o f reference under subsection (c) or (d)
          of this section, whichever is later, the Commission has not filed
          a civil action under this section or the Attorney General has not
          filed a civil action in a case involving a government, governmental
          agency, or political subdivision, or the Commission has not entered
          into a conciliation agreement to which the person aggrieved is a
          party, the Commission, or the Attorney General in a case involving
          a government, governmental agency, o r political subdivision, shall
          so notify the person aggrieved and within ninety days after the
          giving of such notice a civil action may be brought against the
          respondent named in the charge (A) by the person claiming to be
          aggrieved or (B) if such charge was filed by a member of the
          Commission, by any person whom the charge alleges was aggrieved
          by the alleged unlawful employment practice.

42 U.S.C. § 2000e-5(f)(l) (emphasis added). The question you have presented
requires us to determine whether the proposed regulation is consistent with this
statutory language.
   W hen it amended Title VII in 1972, Congress was well aware of the EEOC’s
large backlog o f cases and resulting delays in the processing of charges. See Occi­
dental Life Ins. Co. v. EEOC, 432 U.S. 355, 369 & n.25 (1977). Tide VII nonethe­
less does not specifically set forth the procedure to be followed when the EEOC
has failed to make a reasonable cause determination within 180 days regarding
a complaint against a governmental employer, and thus has yet either to dismiss

  3 Pursuant to the Reorganization Plan No 1 of 1978, the Attorney General has delegated this function to the
Civil Rights Division o f the Justice Department 43 Fed. Reg. 19,807 (1978); 42 U.S.C. §2(X)0e—4 note (1994).
  4 Pursuant to subsections (c), (d) and (f)(1) o f 42 U.S.C. §2000e-5, the commencement of the 180-day period
may be delayed in some instances pending potential state or local enforcement proceedings in jurisdictions that
have comparable employment discrimination laws. These provisions do not affect our analysis here and we therefore
do not address them.


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Proposed Change in EEOC Regulations Concerning Right-to-Sue Notices fo r Public Sector Employees


the charge for want of reasonable cause or refer it to the Justice Department.
Under current practice, if a charge against a governmental entity has been pending
with the EEOC for more than 180 days and the complainant requests a right-
to-sue notice, the Commission refers the request to the Justice Department, which
in turn issues the notice. The EEOC now seeks to amend its regulations to elimi­
nate the referral requirement by giving itself the authority to dismiss charges in
these circumstances. We conclude that section 706(f) gives the Attorney General
exclusive authority to issue right-to-sue notices in cases against governmental enti­
ties, and thus precludes the EEOC’s proposed regulatory amendment.

                                       B. Discussion

   Title VII does not expressly address the question of which agency should
respond to a complainant’s request for a right-to-sue letter where the EEOC has
not made a reasonable cause determination. We believe that the better reading
of section 706(f)(1) gives the Attorney General the exclusive authority to issue
right-to-sue letters under such circumstances in cases involving state and local
governmental employers. This interpretation comports with the language and
punctuation of the relevant clause. Title VII’s structure and purpose also support
this reading. Given Title VII’s consistent assignment of sole litigation authority
to the Attorney General in govemmental-entity cases, and the fact that only the
Attorney General can make the decision whether to file a civil action against a
state or local governmental employer, it is logical to read the statute as conferring
on the Attorney General the exclusive authority to notify complainants of their
right to sue when the federal government has not filed a civil action against a
governmental employer within the prescribed time.
   The question is admittedly a close one, but we conclude that the statutory
authorization of issuance of right-to-sue letters by “ the Commission, or the
Attorney General in a case involving a government, governmental agency, or polit­
ical subdivision” is most naturally read to give only the Attorney General the
authority to issue letters in govemmental-entity cases. While the phrase could
conceivably be read to permit either the Commission or the Attorney General
to issue a letter in such cases, that reading would require giving “ or” a conjunc­
tive meaning, as if the statute designated “ the Commission, or [either the
Commission or] the Attorney General in a case involving a government, govern­
mental agency, or political subdivision.” Viewed in the context of the statute as
a whole, the more plausible reading is that the “ or” is disjunctive, so that the
statute limits the authority to “ the Commission, or [in a case involving a govern­
ment, governmental agency, or political subdivision,] the Attorney General.”
   That reading is supported by other portions of section 706(f)(1) that refer in
the alternative to the Commission or the Attorney General, each of which clearly
gives the Attorney General exclusive authority in govemmental-entity cases. For

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example, the sixth sentence of section 706(f) provides: ‘ ‘Upon timely application,
the court may, in its discretion, permit the Commission, or the Attorney General
in a case involving a government, governmental agency, or political subdivision,
to intervene in such civil action upon certification that the case is of general public
importance” (emphasis added). Since Title VII gives the Attorney General sole
litigating authority in govemmental-entity cases, that provision cannot be read to
permit intervention by the EEOC in such cases. Therefore, in the absence of any
reason to believe that Congress intended the ‘‘or’’ in the passage relating to right-
to-sue notification to be interpreted differently, the same disjunctive interpretation
should be adopted here. See Sorenson v. Secretary o f Treasury, 475 U.S. 851,
860 (1986) (noting that “ normal rule of statutory construction assumes that ‘iden­
tical words used in different parts of the same act are intended to have the same
meaning’ ” ) (citations omitted).
   The majority of courts that have considered this issue have interpreted the
statute as directing the Attorney General, rather than the EEOC, to notify
complainants of their right to sue in all cases involving governmental entities.
At least four courts of appeals have reached this conclusion. See Moore v. City
o f Charlotte, 754 F.2d 1100, 1104 n.l (4th Cir.) (stating that the Attorney General
is “ the authority designated by Title VII [to issue the right-to-sue notice] for cases
in which the defendant is a political subdivision of a state” ), cert, denied, A ll
U.S. 1021 (1985)); Solomon v. Hardison, 746 F.2d 699, 701-02 (11th Cir. 1984)
(noting “ requirement that the Attorney General issue the right to sue letter” );
Fouche v. Jekyll Island-State Park Auth., 713 F.2d 1518, 1525—26 (11th Cir. 1983)
(same); Hendrix v. Memorial Hosp. o f Galveston County, 776 F.2d 1255, 1256-
57 (5th Cir. 1985) (construing section 706(f)(1) as requiring complainant “ to await
the action of the Justice Department before commencing her lawsuit” ); see also
Dougherty v. Barry, 869 F.2d 605, 611 (D.C. Cir. 1989) (observing that “ [c]ourts
have tended to interpret Title VII as laying th[e] responsibility [for issuing right-
to-sue notices in cases involving governmental entities] at the Attorney General’s
door” ); Thames v. Oklahoma H istorical S o c ’y, 646 F. Supp. 13, 16 (W.D. Okla.
1985) (holding that issuance of right-to-sue notice by Attorney General in cases
involving governmental entities “ is expressly required by the statute and furthers
the goals of the Civil Rights Act as remedial legislation by bringing the reluctance
of governmental agencies to comply with Title VII to the attention of the Attorney
General” ), a ff’d, 809 F.2d 699 (10th Cir. 1987) (per curiam) (affirming district
court judgm ent “ for the reasons contained in its written Order” ).5 Cf. Shea v.
City o f St. Paul, 601 F.2d 345, 349-51 & n.6 (8th Cir. 1979) (holding that EEOC’s
notice of dismissal for lack of probable cause constituted notice of right to sue

   5 Some o f those courts have waived the requirement o f a right-to-sue notice issued by the Attorney General,
and have permitted particular cases to proceed on equitable or other grounds despite the issuance of notice by the
EEOC. See M oore, 754 F.2d at 1104 n.l (declining to penalize complainant for “ any EEOC assumption of Justice
Department duties” ); Solomon, 746 F2d at 70 1 -0 2 (waiving requirement as nonjunsdictional), Fouche, 713 F.2d
at 1525-26 (same).


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Proposed Change m EEOC Regulations Concerning Right-to-Sue Notices fo r Public Sector Employees


where no party claimed that defendant’s status as a governmental entity was
relevant).
    The overwhelming majority of district courts have also interpreted the statute
 as authorizing only the Attorney General, and not the EEOC, to issue right-to-
 sue notices in govemmental-entity cases. See, e.g., Kane v. Iowa D e p ’t o f Human
 Servs., 955 F. Supp. 1117, 1133 (N.D. Iowa 1997) (Justice Department must issue
 notice in cases where EEOC has been unable to obtain conciliation agreement,
 “ which this court reads to include situations . . . in which the EEOC simply
 has not reached the case” ); Ying Shen v. Oklahoma State D e p ’t o f Health, 647
 F. Supp. 189, 189 (W.D. Okla. 1985) (dismissing complaint where plaintiff filed
 suit after receiving right-to-sue notice from EEOC because “ the Right to Sue
 notice where a governmental agency is to be sued for discrimination must come
 from the office of the Attorney General” ); D illard v. Rumph, 584 F. Supp. 1266,
 1268 n.l (N.D. Ga. 1984) (“ the statutory requirement of notice by the Attorney
 General must be waived in this case” ); Woods v. M issouri D e p ’t o f Mental Health,
 581 F. Supp. 437, 442-44 (W.D. Mo. 1984) (concluding that “ the Attorney Gen­
 eral is required by statute to issue a notice o f right to sue letter when the charge
 is dismissed in a case” against a governmental entity, but waiving requirement
 on equitable grounds, as “ [p]laintiff should not be punished for the inability of
 the EEOC and Attorney General to follow the terms of the statute” ); English
 v. Ware County D ep ’t o f Family & Children Servs., 546 F. Supp. 689, 690-91
 (S.D. Ga. 1982) (holding that “ notification by the United States Attorney General
is a statutory prerequisite to institution of a Title VII action against a state govern­
 mental body” ). Only one district court has held to the contrary, and that court
did not address the issue presented by the proposed regulation. See Flint v. Cali­
fornia, 594 F. Supp. 443, 445, 448-49 (E.D. Cal. 1984) (finding statutory language
 “ inherently ambiguous” but concluding that “ better reading” is that notice may
be issued by the EEOC). Thus, our analysis of the statute’s text is consistent
with that of virtually all of the courts that have considered this matter.
    Our interpretation is also consistent with the policy considerations that appear
to underlie section 706(f)(1). Although there is no indication that Congress gave
consideration specifically to which agency should issue a right-to-sue notice
against a governmental respondent when the EEOC has made no probable cause
determination, the overall congressional intent with respect to cases involving
governmental entities is clear. While carrying over to governmental cases the
EEOC’s administrative function in the initial processing of charges and its impor­
tant role in seeking to obtain voluntary compliance through conciliation, Congress
unequivocally conferred sole litigating authority in such cases on the Attorney
General. The legislative history suggests that Congress was motivated by a
 “ strong feeling that cases of discrimination by State and local government agen­
cies should be handled by the full force of the United States of America acting
directly through the Attorney General.” 118 Cong. Rec. 1070 (1972) (statement

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of Sen. Williams). See Osiecki v. Housing & Redevelopment Auth., 481 F. Supp.
1229, 1232 (D. Minn.1979) (“ The purpose of referring discrimination complaints
involving governmental employees to the Attorney General was two fold: (1) to
limit the number of federal agencies authorized to sue state governments, and
(2) to bring the prestige of the Attorney General to bear on the reluctance of
local governmental entities to comply with Title VII. . . . The statutory scheme
embodied in section 706(f) clearly limits the power of the EEOC with respect
to governmental employers, and vests the power to bring and intervene in civil
actions involving governmental respondents solely to the Attorney General.” )
(citation omitted); Woods, 581 F. Supp. at 442 (same).
   Given that only the Attorney General can make the decision to bring a civil
action against a governmental employer under Title VII, it makes sense that the
statute also gives the Attorney General the responsibility, at least where the com­
plaint has not been dismissed, to inform a complainant that no civil action has
been filed and that the complainant may proceed with his or her own suit. See
Osiecki, 481 F. Supp. at 1232-33 (“ As the administrative process has not been
completed in cases involving governmental employers until the Attorney General
has determined that it will not bring a civil action, it would be inconsistent with
the intent of section 706(f) to allow the 90 day period [within which the complain­
ant may sue] to commence prior to the Attorney General’s involvement in the
administrative process.” ); English, 546 F. Supp. at 691 ( “ This vesting of authority
implies that the Attorney General should have more than just the ministerial
responsibility for bringing suits against state employers, but also the discretion
to decide whether and when to bring them.” ). Courts have further suggested that
one purpose of the referral requirement is to ‘ ‘insure[ ] that the Attorney General
would be able to review the file and make a determination whether [the United
States] should exercise its discretionary power to file suit on behalf of the charging
party.” W oods, 581 F. Supp. at 442; see also English, 546 F. Supp. at 692
(requirement “ insures at least a cursory review of the file, which is elemental
in determining whether to intervene” ); Thames, 646 F. Supp. at 16 (requirement
“ furthers the goals of the Civil Rights Act as remedial legislation by bringing
the reluctance of governmental agencies to comply with Title VII to the attention
of the Attorney General” ).
   It could be argued that, under Title VII’s overall procedural scheme, it would
be appropriate for the EEOC to refer complaints to the Attorney General only
once the Commission has found reasonable cause, failed at conciliation, and the
case is ready for litigation. The District of Columbia Circuit in Dougherty sug­
gested in dictum that the EEOC should refer a case to the Attorney General
“ only” after finding probable cause and unsuccessfully seeking compliance
through conciliation. 869 F.2d at 611. That dictum might be read to imply that,
in those cases in which there has not yet been a probable cause finding and
unsuccessful conciliation, the EEOC should retain the case and issue the right-

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 Proposed Change in EEOC Regulations Concerning Right-to-Sue Notices fo r Public Sector Employees


to-sue notice. Dougherty cannot, however, support that implication. The Dough­
erty court appears to have assumed that the Commission will have made a cause
determination one way or the other within 180 days following the complainant’s
filing; the opinion simply does not speak to the category o f cases at issue here,
in which the Commission has failed to act by the time the complainant requests
her right-to-sue letter. More importantly, the Dougherty dictum fails to account
for section 706(f)’s unequivocal language giving the Attorney General the duty
of notifying complainants of their right to sue in such cases. We decline to adopt
an interpretation that would be in tension with the language of the statute.6

                                                CONCLUSION

  For the reasons stated above, we conclude that the proposed regulation is not
permissible under Title VII or the ADA.

                                                                       CORNELIA T.L. PILLARD
                                                                  Deputy Assistant Attorney General
                                                                      Office o f Legal Counsel




    6The EEOC’s authority to issue a right-to-sue notice in any case in which it has dismissed a charge against
a state or local governmental entity for lack of probable cause is not inconsistent with our conclusion here The
EEOC amended its regulations in 1980 to provide that it would issue right-to-sue letters in those circumstances.
See 29 C.F.R § 1601 28(d) (1998). That limited authonty does not depend on a conjunctive reading of the “ or”
in section 706(f)’s reference to “ the Commission, or the Attorney General.” that would generally authorize either
to issue the notice. Rather, the Commission made the 1980 amendment in response to the Eighth C ircuit's decision
in Shea v. City o f St. Paul, 601 F 2 d 345 (8th Cir. 1979), dismissing an action as untimely even though the plaintiff
filed suit within 90 days o f the Justice Department’s nght-to-sue letter issued pursuant to section 706(0- The court
held that Shea’s action was time-barred because she filed it more than 90 days after receipt of the EEOC’s dismissal
notification pursuant to a different statutory provision from the one at issue here— section 706(b), which directs
the Commission, upon finding no probable cause, to “ dismiss the charge and promptly notify the person claiming
to be aggrieved and the respondent of its action.” 42 U.S.C. §2000e~5(b) (emphasis added). Shea's interpretation
of the EEOC’s section 706(b) dismissal notificauon as a right-to-sue letter triggering the 90-day limitations penod
meant that, if the Attorney General had continued the practice of issuing separate right-to-sue letters under section
706(0, such letters would only create a trap for the unwary by erroneously suggesting that a complainant had 90
days from the Attorney General’s notice within which to file her complaint This Office found the 1980 regulatory
amendment to be “ not . . . inconsistent with the enforcement scheme that Congress contemplated in enacting
§ 7 0 6 (0 (1 )” Memorandum for David L. Rose, Chief, Federal Enforcement Section, Civil Rights Division, from
Leon Ulman, Deputy Assistant Attorney General, Office o f Legal Counsel, Re: Proposed Delegation o f Authority
o f Ministerial Function to EE O C — Right to Sue Letters Under Title VII at 2 (Feb. 6, 1980) But see Fouche, 713
F.2d at 1524, Ying Shen, 647 F Supp. at 189 (suggesting that the 1980 regulation conflicts with the express language
of Title VII)


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