EEOC Commissioner Charge Trickery Called Out

By John Alan Doran

Back in 2012, the EEOC issued BNSF a “Commissioner’s Charge,” saying it would investigate purported ADA violations by the railroad.  For several years, BNSF cooperated with the EEOC’s numerous information requests.  During the investigation, BNSF provided the EEOC with the names of 54 BNSF employees, but only after receiving written assurances from the EEOC that these employees were not related to the pending Commissioner’s Charge.  Fast-forward to 2018, when the EEOC issued right-to-sue notices to the 54 employees based…(wait for it)…on the supposedly unrelated allegations in the Commissioner’s Charge.  BNSF was suitably perturbed and filed suit, asking the court to declare the Commissioner’s Charge and the right-to-sue notices illegal.  The complaint alleged the Charge was filed over the signature of a Commission no longer in office and that the EEOC had impermissibly published its findings to members of the public – the 54 unrelated individuals.  The EEOC predictably responded that it could not be sued for its trickery. It argued that, because it could always come back and resume an investigation, even after it was “closed,” its right-to-sue notices were not final agency action.

The trial court resoundingly disagreed with the EEOC’s imperious position, and denied the EEOC’s motion to dismiss.  The court held that right-to-sue notices ARE final agency action – or final enough to permit suit, and that BNSF had alleged a sufficient legal wrong to permit a remedy under federal law.  The court’s decision appears to open the way to broader challenges to the EEOC’s shenanigans, which we applaud.  Sadly, the decision also a reminds employers  that the EEOC simply cannot be trusted when it describes its position, promises confidentiality, or makes similar representations in the course of an investigation, even when required to do so by law.  BNSF Railway v. Equal Employment Opportunity Commission (N.D. Tex. 11/27/18)