Commissioner Charges

While most investigations by the U.S. Equal Employment Opportunity Commission (EEOC or Commission) are initiated by a charge of discrimination filed by individual members of the public, Congress also authorized individual EEOC Commissioners to initiate charges (“Commissioner charges”) under Title VII of the Civil Rights Act (Title VII), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Pregnant Workers Fairness Act (PWFA).”^[i]  The following are answers to some common questions about the Commissioner charge process.

1.  How is a Commissioner charge initiated?

Commissioner charges are initiated when a Commissioner signs a charge. Proposals for Commissioner charges may come from an EEOC office in the field; or any person, organization, or member of the public.[ii] For example, during the investigation of an existing charge, the EEOC may discover a potential violation that is not covered in the allegations or scope of that charge and propose a Commissioner charge. Alternatively, an individual, an organization, or another agency, such as a state or local Fair Employment Practices Agency (FEPA) or Tribal Employment Rights Office (TERO), may submit information about a potential violation to any EEOC office so that the office may consider proposing a Commissioner charge. Finally, Commissioners can sign a charge on their own initiative, without first receiving a referral from an EEOC field office.[iii]

2.  What information must a Commissioner charge contain?

Commissioner charges must meet the same requirements that apply to all EEOC charges; since 1972, Congress has imposed no special requirements on the contents of Commissioner charges as compared to other charges.[iv] These requirements include the name, contact information and, if known, the approximate number of employees or members of the employer, labor organization, or employment agency that is the subject of the investigation (covered entity), as well as “a clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.”^[v]  Commissioner charges must be in writing, signed, and verified.^[vi]
 

3.  How is a Commissioner charge processed?

Commissioner charge proposals that arise from EEOC field offices are generally submitted to Commissioners on a rotating basis. Once a Commissioner signs the charge, the rotation ends and the signed charge is assigned to an appropriate field office to investigate the potential discrimination. If each Commissioner has reviewed the proposal and no Commissioner signs the proposed charge, a charge is not issued and the process ends.

Commissioner charges that arise from a Commissioner’s own initiative are signed by that Commissioner. OFP then assigns the signed charge to an appropriate field office to investigate.
 

4.  If a Commissioner charge has been issued, does that mean that the EEOC has already concluded that the covered entity has violated the law?

No, the issuance of a Commissioner charge does not mean that the EEOC has already concluded that the covered entity has violated the law; it only means that the facts presented warrant investigation. Once the EEOC field office completes its investigation, it will determine whether the evidence indicates reasonable cause to believe the covered entity violated the law as alleged in the charge. If the field office finds reasonable cause to believe discrimination occurred, it will offer the covered entity an opportunity to resolve the matter voluntarily through conciliation. If the EEOC is unable to reach a voluntary resolution with the covered entity, it will notify the covered entity in writing and either bring a civil lawsuit against the covered entity or issue the aggrieved individuals a right-to-sue notice and close the charge. A right-to-sue notice allows the aggrieved individuals to file their own civil lawsuit.
 

5.  How does the EEOC investigate Commissioner charges?

The field offices investigate Commissioner charges the same way they investigate charges filed by a member of the public. Investigations may involve requests for information, witness interviews, fact-finding conferences, or onsite visits.^[vii]  As with charges filed by the public, the EEOC has the authority to issue subpoenas and seek judicial enforcement when necessary.[viii]

Prior to a determination of reasonable cause, the Commissioner who signed the charge may withdraw it with the consent of the Commission.^[ix] The Commission may withdraw a charge filed by a former Commissioner if it determines that the purposes of Title VII, the ADA, GINA, or the PWFA are no longer served by processing the charge.  A Commissioner charge filed on behalf of an aggrieved individual cannot be withdrawn unless the individual submits a written request for withdrawal to the Commission.

The EEOC’s regulations provide that the Commissioner who signed the charge must abstain from making a cause determination in the case.^[x]

6.  Are Commissioner charges eligible for mediation?

No, Commissioner charges are excluded from the Commission’s mediation program. However, Commissioner charges can be settled during the administrative process, either before or after an EEOC reasonable cause determination.

7.  How often does the EEOC use Commissioner charges?

From fiscal year 2015 through fiscal year 2024, the median number of new Commissioner charges addressing allegations under Title VII, the ADA, GINA, and/or the PWFA was 14.5 per year. These charges represent a very small proportion – far less than 1% – of the EEOC’s charge volume each fiscal year.
 

8.  How often does a Commissioner charge result in an EEOC lawsuit?

From fiscal year 2015 through fiscal year 2024, the EEOC filed a total of 8 lawsuits based on Commissioner charges, or an average of less than 1 lawsuit per year.

[i] See 42 U.S.C. § 2000e-5(b) (referring to charges “filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission” (emphasis added)).

[ii] 29 C.F.R. § 1601.6(a). 

[iii] 29 C.F.R. § 1601.11(a).

[iv] As originally enacted, Title VII provided that Commissioners could file charges only when they had “reasonable cause to believe a violation of [Title VII] has occurred.”  Pub. L. No. 88-352, § 706(a), 78 Stat. 241, 259 (1964).  When Congress amended Title VII in 1972, it eliminated that “reasonable cause” requirement.  EEOC v. Shell Oil Co., 466 U.S. 54, 62-63 (1984).  The provision as amended in 1972 is still in effect today.  42 U.S.C. § 2000e-5(b).  Thus, Commissioners are not obliged, before signing a Commissioner’s Charge, to substantiate the allegations in the charge; rather, the purpose of the investigation is to determine if there is reasonable cause to believe that the charge allegations are true.  See Shell Oil, 466 U.S. at 71-72 & n.26 (noting that “[n]othing in [Title VII] or its legislative history” supports the view that a court must determine whether the charge is “well founded” before enforcing an EEOC subpoena in connection with an EEOC investigation, including an investigation of a Commissioner charge).

[v] 29 C.F.R. § 12(a)(2)-(4).

[vi] 29 C.F.R. § 1601.11(a).

[vii] See generally, 29 C.F.R. § 1601.14; 29 C.F.R. § 1601.15. 

[viii] See generally EEOC v. Shell Oil Co., 466 U.S. 54 (1984).   

[ix] 29 C.F.R. § 1601.11(b).

[x] See 29 C.F.R. § 1601.19(b); 29 C.F.R. 1601.21(c).