Except for a brief hiatus between 2010 and 2017 (see here), the U.S. Department of Labor (DOL) has for decades issued formal opinion letters in response to requests from employers, employees, and others for the DOL’s official interpretation of novel or complex issues relating to the application of the minimum wage and overtime compensation provisions of the Fair Labor Standards Act and the protected leave and other requirements of the Family and Medical Leave Act. Although these opinion letters do not carry the weight of law (and the DOL does not respond to every request for an opinion letter), a party’s good faith reliance on the information provided to it by the DOL in an opinion letter can provide a defense in litigation.
On December 8, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) announced its launch of a “new process for the public to request a formal opinion letter concerning Title VII and the Age Discrimination in Employment Act (ADEA)” from the EEOC. Like DOL opinion letters, these EEOC-issued opinion letters will provide the EEOC’s official position on a matter and may provide a legal defense to claims of discrimination, harassment, and retaliation brought under Title VII of the Civil Rights Act of 1964 (which protects employees and applicants on the basis of sex (including sexual orientation), gender, race, color, and national origin) and the ADEA. The EEOC also will provide opinion letters on other federal statutes enforced by the agency – the Americans with Disabilities Act, the Equal Pay Act, and the Genetic Information Nondiscrimination Act. Although opinion letters addressing issues under those statutes will represent the EEOC’s official position, unlike opinion letters addressing Title VII or ADEA questions, those opinion letters will not provide a defense in litigation because those statutes do not provide a “good faith reliance” defense for official agency interpretations.
Under the process announced by the EEOC, members of the public may request an opinion letter concerning the application of laws enforced by the EEOC to a specific question or set of facts. Like the DOL, the EEOC is not required to issue an opinion letter in response to every request, but instead will exercise discretion as to which requests it will respond to with a formal opinion letter. As with DOL opinion letters, the EEOC has indicated that it will provide opinion letters in those matters “where the application of existing regulations or guidance is unclear.”
It remains to be seen how useful the EEOC opinion letter process will be. In many cases, a party seeking the EEOC’s interpretation of an unusual fact pattern will not be able to wait what presumably could be weeks or months to receive a response to its request for an opinion letter. The real value therefore may be to others who will be benefit from being able to review the EEOC’s position on a matter and then incorporate that information into its overall EEO compliance strategy.