Equal Employment Opportunity Commission (EEOC) investigations typically end when the EEOC issues a notice of dismissal and right-to-sue letter granting the charging party 90 days to file a lawsuit under one or more of the federal statutes the agency enforces—Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA), the Genetic Information Nondiscrimination Act (GINA), and the Americans with Disabilities Act (ADA). However, the EEOC also has the authority to file lawsuits in court on behalf of individuals when it finds cause to do so. 
Alternatively, the EEOC may take an intermediate position. It can dismiss the discrimination charge, elect not to sue, and issue a “cause determination,” meaning that during the course of its investigation, it found reasonable cause to believe unlawful discrimination and/or harassment occurred. As is the case when the EEOC issues a right-to-sue letter and closes its file, when the agency issues a cause determination, the charging party has 90 days to file a private lawsuit.
Although the EEOC historically has issued cause determination letters rather infrequently, recently published statistics indicate a trend toward an increase in such letters, leaving employers to ponder several questions. What is the effect of the EEOC’s cause determination in court? Is it admissible? Is the outcome determinative? Does it mean that I, the employer, lose and should just settle?
Findings can be used at trial
The case law in this area reveals that cause determination findings generally are admissible at trial under the hearsay exception for public records. The courts have generally held that cause determination letters can be “highly probative evaluations of an individual’s discrimination complaint.” However, the courts have also acknowledged that cause determination letters “are not homogeneous products” and “can vary greatly in quality and factual detail.” Consequently, litigants have successfully been able to exclude EEOC determination letters before trial based on a balancing test and examination of their probative versus prejudicial (harmful) value under Federal Rule of Evidence 403.
However, just because an EEOC determination of likely discrimination is admitted doesn’t mean the court is bound by the agency’s findings. To the contrary, Congress explicitly rejected an early proposal that it allow courts to exercise only deferential judicial review of EEOC findings. Instead, it chose to give the parties the right to have a district court review the merits of the charging party’s claims so that the fact finder is a district judge rather than an administrative agency hearing officer.
In fact, the district courts aren’t in any way bound by the findings of the EEOC. The district judge, as fact finder, has “great discretion” in the treatment of an EEOC reasonable cause finding and must determine what degree of weight, if any, to assign to the agency’s report.
Courts weigh value
Courts regularly look to the content of the cause determination letter on a case-by-case basis to determine the probative value to be assigned to an EEOC finding. In instances in which the EEOC’s finding is conclusory—that is, the agency makes a finding without citing the facts on which its decision relies—courts have either excluded the cause determination letter from evidence altogether or attributed very limited or no weight, finding instead that the probative value doesn’t outweigh its potential prejudicial effect.
To settle or not to settle?
Employers are cautioned that the contents of cause determination letters greatly affect their admissibility and the weight
they are afforded. Therefore, while receiving one doesn’t equate to an automatic loss, it may be harmful to your defense and must be carefully reviewed by a lawyer proficient in this area before you decide whether to settle or litigate.
Deanna L. Forbush is a partner at Morris Polich & Purdy LLP in Las Vegas, Nevada. She may be contacted at dforbush@mpplaw.com.