Document Type


Publication Date


Journal Title

Nevada Law Journal




Federal courts have misconstrued notice in the US Equal Employment Opportunity Commission's ("EEOC" or "Commission") administrative processing and conciliation of charges of discrimination. By requiring that the notice given to employers during the Commission's processing of a claim be equivalent to that of notice in civil litigation, courts have conflated the purpose of notice in the former with the latter. Some of this conflation may be a consequence of the Supreme Court's tightening of pleading standards, class certification requirements, and other procedural requirements, which are primarily focused on providing adequate notice to a defendant regarding the scope of the plaintiffs' claims.

In the fifty years since Congress enacted Title VII of the Civil Rights Act of 1964, the procedural landscape for plaintiffs asserting claims under the Act has changed dramatically. A series of decisions by the courts in the 1980s and early 1990s meant that plaintiffs increasingly failed to reach the trial stage of their employment discrimination suits because courts decided their cases using "procedural devices." In a series of more recent decisions, the Court has limited the ability of plaintiffs, particularly those making class allegations, to move beyond the pleading stage. In the wake of these decisions, Defendant employers have increasingly used a litigation tactic that centers on the sufficiency of the notice the EEOC provided them during the EEOC's pre-suit administrative processing of charges of discrimination. In considering the employers' arguments, courts have assumed that conciliation and other steps in the EEOC's multi-step administrative process serve the same purposes of well-pleaded complaints and discovery in civil litigation and, therefore, require an attendant level of notice to the employer during the administrative processing.

When courts misconstrue notice in administrative proceedings, they impermissibly enlarge the due process rights of defendants in ways that undermine the effective enforcement of Title VII. Part I of this essay gives an overview of the EEOC's litigation authority and its administrative processing duties under Title VII. In Part II, the essay describes decisions in which courts have conflated notice in the EEOC's administrative processing of the charge with notice in civil litigation. Part III of the essay discusses the purposes of notice in civil litigation, and contrasts those purposes with the purposes of notice in the EEOC's administrative processing. Importantly, a civil action under Title VII results in a trial and formal finding of liability while administrative processing results in an opportunity to voluntarily comply with Title VII. Finally, Part IV highlights the harm caused when courts import the principles underlying notice in the litigation stage of an employment discrimination suit to their review of the EEOC's administrative processing. By not acknowledging the very different rights at stake in the two proceedings, courts have failed to take into account basic principles governing due process and erroneously have required higher levels of notice for employers at the expense of Title VII enforcement.

First Page


Last Page


Volume Number


Issue Number



University of Nevada Las Vegas

Included in

Law Commons



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.