What Employers Need to Know About Filing a Position Statement After a Complaint Is Made with the EEOC

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Article By: Marc Newman

A Leading Commercial Litigation Attorney in Michigan

What Employers Need to Know About Filing a Position Statement After a Complaint Is Made with the EEOC

Published on: January 22, 2021


When someone files a discrimination complaint against your company with the Equal Employment Opportunity Commission (EEOC), federal law provides you with the right to respond with an EEOC position statement.

An effective EEOC statement of position adequately responds to the complaint with supportive evidence.

What Is an EEOC Position Statement?

An EEOC position statement is an employer’s response to an EEOC charge.

We recommend carefully following agency guidance for your EEOC position statement to prevent delays in processing your response to a discrimination claim.

What Makes an Effective Position Statement?

An effective position statement adheres to the suggestions provided by the EEOC. Your statement should directly respond to each claim made against your company and should include your version of the facts.

Your answer should be clear, complete, concise, and provide supporting evidence in the form of witnesses and documentation.

Seek the counsel of an employment attorney to prepare your EEOC position statement. A qualified employment attorney understands what information is crucial to supporting your version of events and what information may be deemed superfluous or irrelevant. An effective EEOC position statement should be precise and focused in its response and never contain irrelevant information.

Responding to an EEOC charge requires careful analysis of the charge. You will need to review your company policies and relationship with the employee or former employee making the charge. Supporting documentation should include the following:

  • Employer position regarding each alleged discriminatory act;
  • Company policies or practices regarding the discriminatory allegations;
  • Identification of other parties affected by your company practices;
  • Examples of similar situations where the implementation of company policies or practices did not result in similar allegations;
  • Names of officials taking action related to the discriminatory allegation;
  • A statement regarding the current status or resolution of the matter.

In many instances, an EEOC discrimination charge may eventually result in litigation. Therefore, you need to be careful to answer as fully and truthfully as possible, with information that will hold up all the way through litigation if that becomes necessary.

Identify the Deadline

Before beginning your EEOC position statement, properly identify the deadline for the completion of your response.

Extensions may be requested, but you need to make any request for extension as early as possible. Grants for extensions are uncommon, and sufficient grounds for the extension must exist.

For example, the EEOC requires proof of due diligence and a good faith effort to supply all required information. The EEOC may also request partial submission of information compiled in relation to the charge.

Despite the possibility of an extension, it’s essential to act quickly in preparing your EEOC position statement.

Supporting Documentation

The documentation you need to support your position regarding the EEOC claim may include the following:

  • Witness statements,
  • Payroll records,
  • Disciplinary and termination forms,
  • Employee records,
  • An organizational chart detailing company structure,
  • Company policies related to the allegation, and
  • Internal investigation records related to the allegation.

Providing evidence supporting your version of the facts as reflected in your EEOC position statement is a vital element of strengthening your position against such charges.

Therefore, retaining a qualified employment attorney to guide you through the process may limit delays and strengthen your case. Although no requirement exists for legal representation, failing to address all necessary elements in your EEOC position statement may result in an unfavorable investigation of the claim.

Separate Confidential Information

The EEOC refuses to accept efforts to maintain confidentiality through blanketed or unsupported assertions of confidentiality.

Instead, the EEOC requires confidential information to be separated by labeled attachments.

The EEOC requires the following in separate attachments:

  • Sensitive medical information,
  • Social security numbers,
  • Confidential commercial or financial information,
  • Trade secret information,
  • Non-relevant identifiable information of witnesses or other third parties, and
  • References to charges filed against the employer by third parties.

Although the EEOC provides employer position statements to the charging party, the EEOC may redact confidential information before release.

You must be sure to provide the EEOC with an explanation of the confidential nature of the information.

Upload Position Statement Correctly

The EEOC provides the employee or former employee making the charge against you with a copy of your EEOC position statement. For this reason, it’s essential to consider your tone, language, and confidential information provided.

The EEOC requires you to respond to your EEOC charge via the Digital Charge System. The EEOC then provides your position statement and non-confidential attachments to the charging parties upon request.

Additionally, the EEOC gives the responding party 20 days to respond to your EEOC position statement. Unfortunately, you do not receive a copy of the charging party’s response.

What Happens After You File Your EEOC Position Statement?

Now that you have completed your EEOC position statement and filed it pursuant to the Digital Charge System, you may wonder what to do next. Unfortunately, review of your EEOC position statement may take some time.

Additionally, further investigations may be requested by the EEOC in determining whether the alleged claim occurred.

Contact Your Insurance Provider

Insurance policies require insured parties to provide notice of EEOC claims filed. Review your employment insurance policy and determine whether discrimination claims fall under your coverage.

Request for Information

Upon reviewing your EEOC position statement, the agency may provide you with a Request for Information (RFI). The RFI may require you to submit personnel policies, the charging party’s personnel file, and other parties’ personnel files mentioned in your EEOC position statement.

On-Site Visit

The EEOC may request an on-site visit. If asked, it’s important to grant these as they may expedite the investigative process.

In some situations, an RFI may not be necessary. If granted, EEOC personnel will visit and evaluate your place of business.

Contact Information

As previously mentioned, it’s important to include contact information for any witnesses and employees that are relevant to your case in your EEOC position statement. The EEOC may request interviews of these individuals during their investigation. A representative may be present for any interviews with management personnel.

However, the EEOC may conduct interviews of non-management personnel without the presence of company representation.

Investigation Conclusion

Upon conclusion of their investigation of the allegation, the EEOC decides the employee’s complaint on the merits.

Fail to Conclude

The EEOC issues a Dismissal and Notice of Rights if the agency is unable to conclusively establish the occurrence of discrimination.

The notice includes information to the charging party that they possess the right to file a lawsuit in federal court within 90 days of receipt of the notice.

You also receive a copy of this notice. Therefore, it’s important to retain all documentation used to support your EEOC position statement. If the charging party pursues a federal lawsuit against you, the supportive evidence used in your position statement may be useful at the federal level as well.

Reasonable Cause

If the EEOC finds reasonable cause to believe that discrimination occurred, the parties receive a Letter of Determination. The Letter of Determination requests that both parties work with the EEOC to resolve the charge through conciliation.

Conciliation is a voluntary process, and both parties must agree to the resolution. Conciliation efficiently, effectively, and inexpensively resolves employment discrimination claims and the EEOC actively encourages it.

Conciliation Fails

In the event conciliation efforts fail, the EEOC possesses the authority to enforce a violation of its statutes by filing a lawsuit in federal court. The EEOC may decide whether to litigate the charge.

If the EEOC decides not to litigate the discrimination charge, the charging party receives a Notice of a Right to Sue and may file a lawsuit in federal court within 90 days of the EEOC determination.

Contact Us

The Miller Law Firm began nearly 25 years ago as a three person law firm. Today, nationally recognized and consisting of 26 highly skilled attorneys, The Miller Law Firm holds a reputation as a superior commercial litigation boutique firm.

With successful litigation cases reaching low six figure settlements to hundreds of millions of dollars, the experienced attorneys at The Miller Law Firm handle a wide range of conflicts including employment disputes involving both the employer and employee.

We possess extensive experience in administrative proceedings throughout the United States. We know the required elements for a strong EEOC position statement and understand the complexity of the EEOC’s investigative process. Contact our office today to discuss the allegations against your business and the next steps to take.

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