All too often, someone who filed an EEOC charge comes to see me with their right-to-sue letter in hand seeking representation for a lawsuit. Unable to accept their case, i discus the alternatives. I review the deadline with the potential client: 90 days for federal court and 2 years for state court. Looking more closely, I realize that the EEOC did not notarize the charge. Oh, oh. The EEOC famously, perhaps infamously, does not notarize changes of discrimination. Without a notarized signature, the client cannot file suit in state court.
The EEOC Notice of Dismissal (aka "right-to-sue" letter) form used by the EEOC has two signature blocks, one in which the affiant swears under penalty of perjury that the above complaint is correct and a second block which requires notary certification. The EEOC uses the first block in which the affiant signs under penalty of perjury. That first signature suffices for federal court, but not for state court. The EEOC never asks the charging party to sign before a notary. Stetson College of Law has posted a sample EEOC charge.
Just about every private practice lawyer who represents employees asks the charging party to sign both signature blocks. The notary certification is necessary for state court. It only takes an extra minute or two to sign a second time before a notary. I am told that way back when, the EEOC used to have charging parties sign both block. But, they have long since discontinued that practice.
So, now, in my office, I have to explain to a charging party why s/he cannot or should not file in state court. It is way too late to file a new charge of discrimination. As often happens, they came to see me about Day 88 of a 90 day deadline to file in federal court. It is hard to find lawyers who represent employees in employment matters.
So, once again, a client sees me well past the six month deadline for filing a charge of discrimination. The 90 days to file in federal court is almost gone. Since the charging party did not sign before a notary, s/he cannot now file in state court. It is a maze which traps many well-meaning victims of discrimination. All because the EEOC would not take an extra couple of minutes to have the charging party sign twice…….