One of the things that has always bothered me about the EEOC process in employment discrimination cases is its lack of precision on certain critical issues. This is particularly true with regard to one of the most significant time requirements contained in Title VII - the requirement that the plaintiff file a lawsuit in federal court within 90 days of receipt of a right to sue letter from the Commission.
For whatever reason, the Commission has never taken steps to ensure that there is a record of when it mailed a right to sue letter and when the plaintiff ultimately receives the letter. I've always believed that this is due, in part, to the Commission's hope that by introducing some uncertainty into the process, courts would be willing to err on the side of caution and allow cases to go forward when it appeared that the 90 day filing window had expired. Using a next-day carrier, or certified mail, both relatively simple and expedient, would be preferable to the current system, in which the right to sue letter is simply dropped into the US mail, without even a certificate showing when the document left the government's hands. And I'm aware of numerous cases where right to sue letters have languished in EEOC regional offices for days before being mailed, as well as the typical delays that manifest themselves in the US postal system.
Naturally, this haphazard process introduces all kinds of problems when a plaintiff files her case at 93-plus days following the date on the EEOC's letter. The Ninth Circuit, of all places, recently tried to establish "a coherent rule" in these types of cases, and determined that, absent some other evidence, a plaintiff will be presumed to have received a right to sue letter three days after the date of the right to sue letter. The decision is even more surprising because it had the effect of terminating a plaintiff's employment discrimination case because the plaintiff filed 97 days after the date of the EEOC's letter.
There's still no universal rule on presumption of receipt, but perhaps the EEOC will begin to address the issue now that the Ninth Circuit has spoken.