As President Donald Trump’s efforts to downsize the federal government continue, the Equal Employment Opportunity Commission (EEOC) appears to be one agency that has avoided mass layoffs — at least for now. This could be a matter of timing, or a decision by the administration to repurpose the EEOC to enforce its employment discrimination priorities rather than reduce the agency’s resources. If the EEOC eventually faces significant reductions in its manpower and enforcement capabilities, this may actually lead to an increase in employment litigation.

In our experience, many plaintiffs’ lawyers use the EEOC process as a screening tool when deciding whether to take cases on a contingency fee basis. If a potential client can’t convince the EEOC that they were discriminated against, how would they fare before a federal judge and jury?

However, if the EEOC investigative process is significantly delayed, will these lawyers opt to request right-to-sue letters at the outset instead of waiting for an administrative determination regarding their claims? Charging parties have a statutory entitlement to the right-to-sue letter 180 days after filing their charges. EEOC investigations often take six to nine months with current staffing levels. If this time period extends to a year or more, employees may request an immediate dismissal and sue soon after the charge is filed, instead of waiting so long for an administrative resolution.

Without the EEOC acting as an initial screener of discrimination claims, employers may see an uptick in lawsuits. Charges that currently end at the administrative stage may turn into litigation that is more expensive and involved than filing a position statement or participating in an EEOC onsite investigation. As the federal government’s mission changes, employers should monitor these developments for intended and unintended consequences that could affect their employees and legal risk management.

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