In Part I, I outlined the EEOC process of investigating a charge of discrimination, and in Part II, I described the steps that an employer should take in responding to an EEOC’s charge of discrimination or retaliation. Finally, in Part III, I address what business owners should consider specifically in drafting a position statement.
1. Remember that a position statement can be later used in litigation. What employer states in a position statement can be used in litigation, thus the employer should be able to back up its statements with documents and/or witness testimony and verify everything that is described in that statement. A lot of times, an employer will provide one reason for taking an employment action in the position statement, and then provide another or additional reason or reasons during litigation. Such discrepancies can be damaging to employer’s credibility and can make it impossible to obtain a summary judgment and an early dismissal of the suit.
2. A detailed position statement is better than a short response. While the charge form will often contain only a paragraph or two describing a discrimination or retaliation claim, the position statement should be much longer and address the nature of the employer’s business, past consistent employment decisions, and attach appropriate documents that support the employer’s positions (such as, for example, written warnings or discipline notes regarding the employee who was terminated; important emails or attendance records). You should also use the position statement to teach the agency about the nature of your business and how the employment decision that is discussed in the charge is consistent with your business goals.
3. Keep the position statement confidential. Information related to the EEOC investigation, the charge, and the employer’s position statement should be shared on a need-to-know basis. If possible, it should be kept within the HR department and not shared outside of it.
4. Work with legal counsel. The charge can be a first step in the employee’s decision to bring a lawsuit against your business. Any discrepancies in the position statement or failure to address allegations in a complete and open manner, can increase the chances of employee filing a lawsuit and prevailing on his or her claim. If you decide to conduct an investigation on your own, at the very least you should have an attorney review the position statement before it is sent to the EEOC.
5. Respond in a timely matter and cooperate with the agency. Providing a timely response and cooperating with the EEOC’s investigator regarding any addition requests for information is key in making sure the the investigation is completed as soon as possible. Failure to respond or cooperate may result in an adverse decision.
The common mistakes that employers commit when responding an EEOC charge is ignoring the charge completely; not responding to the charge in a timely manner; providing a response that fails to address the allegations in the charge; or providing a response that relies on one person’s account of what happened, without conducting a proper investigation or verifying that person’s statements. What business owners should understand is that a charge can be the first step in a future lawsuit. Thus, failing to investigate the situation at the charge phase and verify all statements submitted to the EEOC, can end up costing the business a lot more time and money down the road, once the EEOC or the charging employee file a lawsuit arising out of the charge.
Leiza Dolghih frequently advises employers on how to handle troublesome employees, assists with responding to EEOC charges and investigations, and litigates employment disputes. For more information, e-mail Leiza.Dolghih@GodwinLewis.com.