GrayRobinson Labor & Employment E-lert: EEOC Reinstitutes Practice of Offering Opinion Letters

By: Sarah P. Reiner, Shareholder

On December 8, 2020, the U.S. Equal Opportunity Commission (EEOC) introduced a new process pursuant to which members of the public may request formal opinion letters. This change in policy is a significant reversal of the EEOC’s position on opinion letters. For over a decade now, the EEOC has declined to provide opinion letters, which are documents that communicate the agency's official stance on workplace bias issues that may not be specifically addressed by applicable regulations or previously issued policy or guidance. The EEOC did in some cases provide informal discussion letters; but, informal discussion letters may not be relied upon in the same manner as opinion letters because they do not constitute an official opinion of the EEOC.
 
The new process announced Tuesday revives the practice of issuing opinion letters and thus allows any interested person, including employers, to ask the EEOC for its take on a job dispute arising under Title VII or the Age Discrimination in Employment Act. Further, an opinion letter may provide a defense to liability. This year, the EEOC has published two opinion letters outlining the agency's stance on a tax credit program and its framework for bringing pattern or practice claims. As an example, the opinion letter on pattern or practice claims may be viewed here.

An employer who desires an opinion letter on a legal issue that falls under the purview of the EEOC may send a letter or email to the EEOC with their name, name of other interested parties, their question, and as much factual information as they know about the specific legal question they wish to be addressed. The EEOC process for requesting an opinion letter may be viewed here. This is not to say that opinion letters will now be provided upon demand.  The EEOC may decline to address the issue, and opinion letters must be approved by a vote of the commission and signed by the EEOC’s legal counsel.
 
Employers with challenging legal questions they may want to seek an opinion on should reach out to their employment counsel to discuss the pros and cons of seeking an opinion letter, and determine if there are any regulations or EEOC policies that already address the issue.