What Employers Need to Know about Filing a Position Statement after a Complaint is Made with the EEOC
When someone files a discrimination charge against your company, you have the right to respond with a position statement. Recently, the EEOC posted guidance on its website for how to write an effective position statement.
Employers should ensure that their position statement adequately responds to the charge and that it is supported by evidence. A poorly written position statement can get you off on the wrong foot with the EEOC, so follow the agency’s guidance.
Identify the Deadline
Before drafting the position statement, you should understand your obligations at the outset. In particular, look at the stated deadline for providing your response. You must meet this deadline. Although the EEOC might grant a brief extension, the agency wants to see that you are working diligently on your position statement. It might even request that you submit a partial draft of your statement as proof that you are making progress in responding to the charge.
Find Supporting Documentation
You also must provide documentation to back up your factual assertions. If you do not provide documentation, then the agency might reject your statement out of hand. The document retrieval process can be lengthy. In fact, it might not be possible to fully investigate the alleged discrimination before your position statement is due.
Nevertheless, you should begin collecting information as soon as possible. Documentation can take many forms:
- Affidavits from witnesses who observed the events in question. For example, an employee might claim her supervisor groped her at an office party. You might need to submit affidavits from other attendees.
- Payroll records. If an employee alleges he was paid less because of racial discrimination, you might use payroll records to prove otherwise.
- Personnel records. You can use these to establish why you took an adverse action against an employee.
- Communications, such as emails or letters. The substance of the communication might be directly relevant to the dispute.
What to Include in Your Position Statement
Before writing, read the charging party’s allegations thoroughly so that you understand the alleged discrimination. The EEOC recommends that you include the following information in your position statement:
- A description of your organization, including the legal name, address, and number of employees. Also include the name and contact information of the individual responsible for responding to the charge. You can also provide an organization chart if you find that helpful.
- Information about applicable practices, policies, and procedures if these are related to the alleged discrimination.
- The names of any other individual who has been similarly affected by your practices, policies, or procedures.
- An explanation of why someone was treated differently under a practice, policy, or procedure at issue in the charge.
- The identity of any official who made decisions or undertook action related to the matter raised in the charge.
- Information about an internal investigation of the alleged incidents.
Don’t forget to respond to each alleged discriminatory act as spelled out in the charge. You should support each of your responses with relevant supporting documentation, such as affidavits, company records, or personnel records. Remember to be as specific as possible about dates, locations, and actions.
Your position statement should be responsive to all alleged acts of discrimination. If you overlook something, the EEOC might assume you are admitting its truth, which you want to avoid.
At the same time, strive for clarity and concision. EEOC staff do not have an unlimited amount of time to read a long-winded position statement. Furthermore, lengthy statements only “lock” you into a story that might change as you perform more investigation. Keep the position statement as simple as possible.
You should also realize that EEOC can share your position statement with the charging party and their representatives. The charging party will also have an opportunity to respond to your position statement although you will not be able to read it. Instead, you can access the response later, in a lawsuit.
Notify EEOC of Possible Resolution
The EEOC also wants to know if you have resolved the dispute or whether it can be resolved in the future. You should also alert the agency to your proposed resolution if you have one. If you are admitting fault, then you should obviously consult with an attorney before doing so, since any admission of discrimination on your part could have unforeseen repercussions.
Handling Confidential Information in a Position Statement
You might need to refer to highly sensitive information in your position statement, such as:
- Trade secrets
- Social Security Numbers
- Sensitive financial information about the company
- Medical information
In the position statement, you can refer to this information without disclosing its contents. You should also create a separate attachment for all confidential information and label the attachments accordingly: “Trade Secrets,” “Company Financial Information,” “Medical Information.”
You should also include an explanation for why you are claiming the information is confidential. In some situations, as with Social Security Numbers, the reason is obvious. However, if you are claiming that information is a trade secret or that it constitutes sensitive financial information, then more explanation is necessary. Avoid making blanket statements that information is confidential, as the EEOC will not be persuaded.
Submitting Your Position Statement
You can upload your documents to the Respondent Portal using the Upload Documents button. Once you upload something, you cannot take it back, so make sure everything is in order before you upload.
Contact a Dallas Employment Lawyer with Questions
The position statement is an important tool for rebutting the charging party’s allegations against your company. At the same time, position statements are rife with landmines for the unwary. Providing too much information, locking yourself into a story before doing adequate investigation, and revealing confidential information are only some of the problems that await businesses attempting to draft a position statement on their own.
To protect yourself, you need an experienced employment on your team. At Lindquist Wood Edwards LLP, we have over 30 years of collective experience in employment law and have represented businesses in all sorts of discrimination cases.
The sooner we hear from you, the more we can help. Reach out to us today by calling 214-891-5492.