Keys to crafting an effective response to an EEOC discrimination charge

By Charlie Plumb

Once the Equal Employment Opportunity Commission (EEOC) receives a discrimination complaint from a current or former employee, the Commission begins gathering information about their allegations of discriminatory treatment. That process includes requesting the employer to provide relevant documents. Additionally, the EEOC typically asks the employer to submit its statement of position setting out its response to the accusations of discriminatory conduct on its part. In a previous posting, we advised our readers that the EEOC would begin providing to the charging party and their attorney a copy of the employer’s statement of position. This development makes the preparation by an employer of a quality statement of position even more important.

EEOC guidelines for employer responses

Recently, the EEOC published guidelines for employers to follow when responding to charges of discrimination. According to the agency, an effective statement of position should:

  • Describe the employer’s business operations.
  • Generally explain how the employer is organized – e.g.: departments, locations, supervisors, etc.
  • Specifically describe the charging party’s job responsibilities, supervisor(s) and co-workers.
  • Respond to each act of discrimination alleged in the charge of discrimination – who, what, when and where.
  • Provide any applicable policies or procedures.
  • Identify any prior practices or events that are consistent with how the employer treated the charging party.
  • Explain how and why employees who were in a similar situation to the charging party were treated the same or were treated differently.
  • Produce any documents reflecting any review or investigation of the charging party that lead to the employer making an employment decision.
  • Provide any documents regarding the charging party’s employment history or prior issues that were relevant to any employment decision.
  • Provide any relevant personnel records.
  • Identify the person(s) who made the employment decision regarding the charging party.
  • Consider providing statements from witnesses or co-workers supportive of the employer’s position.

From the EEOC recent actions, it’s clear the Commission will be paying increasing attention to employers’ responses to charges of discrimination. This trend, combined with the development that charging parties and their attorneys will receive employers’ responses to charges, places a premium on preparing an effective and persuasive statement of position.