Master of Its Own Case: EEOC Investigations after Issuing a Right-to-sue Notice

The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the full arsenal of federal employment discrimination laws. But in addition to vindicating the rights of employment discrimination victims, the EEOC also serves as a gatekeeper to screen claims before they get to court. As part of that gatekeeping function, Congress requires that individuals alleging employment discrimination under Title VII of the Civil Rights Act of 1964 must obtain permission from the EEOC before they can bring legal action on their own. Title VII’s text leaves the EEOC’s role after issuing a right-to-sue notice ambiguous. Despite this ambiguity, or perhaps because of it, the EEOC promulgated 29 CFR § 1601.28(a)(3), which interprets Title VII as allowing the agency to continue its investigation when it would further the broad antidiscrimination mission Congress tasked it to carry out. The EEOC typically terminates its investigation after it issues a right-to-sue notice. But the times it has continued to investigate, the EEOC often has faced litigation challenging its statutory authority to do so. The circuit courts to confront the ambiguity regarding the EEOC’s authority in this context have come to conflicting results. On one side, the Fifth Circuit has held that the issuance of a right-to-sue notice strips the EEOC of its authority to investigate. On the other, the Seventh and Ninth Circuits have held that the EEOC not only retains its authority to investigate employment discrimination claims after issuing a right-to-sue notice, but that continued investigations promote the broad purposes of Title VII. This Comment addresses this unresolved question through the lens of judicial deference to administrative agencies, a doctrine that the circuit courts largely have ignored. Applying the two-step analysis from Chevron, this Comment first argues that the text of Title VII is ambiguous and that Congress intended to give the agency the authority to interpret the statute’s procedural provisions. It then argues that § 1601.28(a)(3) is both procedural and a reasonable interpretation of Title VII and that, therefore, the EEOC’s interpretation is entitled to Chevron deferenc