EEOC Right to Sue Fiasco Ends in Whimper, Not a Bang

By John Alan Doran

The EEOC settled a lawsuit challenging its issuance of some 54 “Right to Sue” notices involving BNSF Railway.  Law 360 reports that the case settled when the EEOC agreed to set aside the Right to Sue notices. 

BNSF sued the EEOC, claiming that the EEOC violated the Administrative Procedures Act (“APA”) when it issued the Right to Sue notices.  BNSF asserted that the underlying charge that gave rise to the notices was flawed for a variety of reasons, not the least of which were that the charge did not specify the date of the alleged discrimination, the EEOC Commissioner approved the charge only after he officially left the EEOC, and the EEOC unlawfully disseminated the charge to potential plaintiffs when it was supposed to be confidential.  Last year the trial court found that the notices constituted final agency actions that are subject to challenge under the APA.

This is yet another example of the EEOC’s overreach, which led to unnecessary and costly litigation.  More importantly, the case may provide a roadmap for employers to challenge the bona fides of Right to Sue notices, which the EEOC has historically issued like candy out of a PEZ dispenser.  And, while the EEOC regularly issues self-congratulatory press releases over miniscule settlements, it is notoriously silent on this settlement, which should come as no surprise to any of us. 

BNSF Railway Co. v. EEOC, 4:18-cv-0031 (N.D. Tex. 2019).