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How Should Employers Use an EEOC Position Statement to Respond to Discrimination Charges?

HR Management
by Chris Ceplenski

When faced with an EEOC charge, typically one of your first requirements will be to respond with what’s known as a position statement. The position statement is where the company has the chance to defend their position.

Creating an EEOC Position Statement: Some Tips

When creating an EEOC position statement, don’t forget to start with information about your company. What is the context leading up to the situation in question? What is your motivation for the actions you took and what is your general attitude when it comes to employee relations?

The attitude or tone you want to convey is that your company is a good company who is simply clearing up a misunderstanding. Highlight that you want your employees to succeed and feel that everyone matters. You could also bring up the fact that you take many steps to avoid terminations—terminations are costly and are only a last resort.

Here’s an example of an opening statement:

We appreciate this opportunity to set the record straight regarding the separation of employment for [Name]. In fact, we wanted her to succeed, but when her non-performance began to jeopardize our operations, we were left with no choice but to terminate.

During the process of creating an EEOC position statement, many organizations leave out some of the most important information. Here are some important but often-omitted sections:

  • Company overview. “Sometimes the company and the person preparing the position statement will launch right into the issue without talking about the company and trying to put a human face on the company.” Merrily Archer explained in a recent BLR webinar. “Does this company seem sympathetic? The company overview is often just completely neglected and it’s a squandered opportunity.”
  • Commitment to EEO principles. A company can highlight their commitment to EEO principles by pointing to the handbook (and relevant policies), complaint procedures, and training. This is another area often omitted. Ideally, point out all of the things you already do to ensure equal employment opportunity in your workplace.
  • The nature or importance of the job in question. Point out what can happen if this job is not done well or not done at all. Also point out that you could not have possibly kept someone in the role that was not performing up to expectations.

    It should be obvious why the charging party’s actions (presumably the actions that got them fired) would not be acceptable for the position. By highlighting this, you’re emphasizing that termination is not a decision that was taken lightly.

  • An overview of the charging party’s initial employment, including their acknowledgement of your policies, handbook, and procedures. In this section, explain why you hired that person. Explain that you could not have had a problem with the discriminatory factor (whatever that may be) and still hired the employee in the first place. You do not have a problem with it, and you hired that person because they appeared to be qualified. Point out that the employee acknowledged your policies, attended training, and so on. Then explain what happened next.
  • Finally, include your own story. It’s important to give your side, not just a refutation of the charging party’s story. The two are not the same, and simply refuting the accusation isn’t enough. Tell your side – go through the items from the point above and explain what happened next and how you handled it.

Template for an EEOC Position Statement

Here’s a brief template on how you could put the EEOC position statement together:

  • Section I: We’re Good Guys. Include the company overview and commitment to EEO principles.
  • Section II: The Charging Party’s Employment History With Your Company. Explain the nature and importance of the job. Outline the hiring and initial employment term, other work history, and job performance. Show they were trained. Explain that they acknowledged receipt and understanding of your policies. This section shows the EEOC your best practices as well as giving background on the situation.
  • Section III: Our Story. Explain all rehabilitation actions you took before resorting to termination of the employee. Explain how their actions interfered with (or impacted) operations. Explain any rule violations and the impact they had.
  • Section IV: Analysis and Conclusion. Based on everything above and given all of your efforts to keep the person on board, explain how you had no choice but to continue with the termination. Here’s an example Archer gave us during the webinar: “Based on all of this, given our efforts to rehabilitate this employee, it hardly bespeaks racial discrimination. On the contrary, the record shows that we made heroic efforts to rehabilitate this person’s performance until they began interfering with operations.”

For more information on creating an EEOC position statement, order the webinar recording of “EEOC Position Statements Explained: Your Organization’s Response to Discrimination and Retaliation Charges.” To register for a future webinar, visit http://store.blr.com/events/webinars.

Attorney Merrily Archer is the founder of EEO Legal Solutions, which offers solutions for managing the burgeoning risk of workplace EEO disputes. Ms. Archer is a former employment attorney with two of the nation’s largest workplace law boutiques and a trial attorney for the U.S. Equal Employment Opportunity Commission.

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