Has your company recently received a Notice of Right to Sue (NRTS) from the Equal Employment Opportunity Commission (EEOC) without ever having received a Charge of Discrimination? If so, you are not alone.
Within 10 days after an employee files a Charge with the EEOC, the EEOC normally sends the Charge to the employer prior to issuing a NRTS. The copy of the Charge usually comes with information on the next steps in the process. The EEOC may decide not to investigate and issue an NRTS accordingly. Oftentimes, the EEOC offers mediation or requests a Position Statement from the employer as part of its investigation into the employee’s claims. This affords employers an opportunity to formally respond to the allegations.
Lately, we have noticed a trend where employers are receiving copies of NRTS letters as the first correspondence related to the Charge. This takes many by surprise, leaving employers to wonder whether they missed an important document previously sent by the EEOC. While notifications from the EEOC are sometimes overlooked, the EEOC has not been consistently informing employers that a Charge was even filed.
Since NRTS letters do not contain a copy of the Charge, employers are left in the dark as to what the employee alleged. They may also be unaware of whether the employee dual filed the Charge with a state fair employment practices agency, unless that state agency has already separately contacted the employer.
Although an April 23, 2025, executive order deprioritizing disparate impact claims led to an increase in quick issuance of NRTS letters, the trend we have noticed is not limited to such claims. We suspect it is due, in part, to the EEOC’s backlog of cases, which was exacerbated by the government shutdown in late 2025.
Per the EEOC’s 2026 Congressional Budget Justification, part of the EEOC’s focus this year will be on “priority issues and where the agency can have the greatest impact on workplace discrimination.”
Even when the EEOC issues an NRTS, employers may still have to respond to Charges of discrimination that are dual filed with state agencies. When a Position Statement is required in response to a Charge (either from the EEOC or a state agency), employers should still fully respond, even if the ultimate result is a subsequent NRTS indicating that the EEOC or state agency will not investigate further.
What should you do?
- Preserve records related to the employee who filed the Charge. You can also contact the EEOC to obtain a copy of the Charge.
- Be on the lookout for documents indicating court proceedings have been filed. Many, but not all, lawsuits based on the Charge must be filed within 90 days of the employee’s receipt of the NRTS, under federal law.
- Continue to respond to Charges received from a state fair employment practices agency. NRTS letters from the EEOC limit the time for filing a lawsuit under federal law, but the timing under state laws may be longer.
Bricker Graydon Wyatt’s Labor & Employment attorneys have a wealth of experience and offer guidance to employers, from conducting investigations to preparing Position Statements - as they navigate cases with the EEOC and/or state fair employment practices agencies.
