Have you ever faced an EEOC investigation? What is the best course of action—hire a lawyer, or navigate the process in good faith on your own? Obviously the answer depends on the specifics of the situation, but you may be surprised to learn that sometimes handling it on your own can have a better outcome than going with a response full of legal jargon and case law.
“Not every EEOC charge carries the same risk. In fact, whether an EEOC charge exposes you to risk depends on whether or not it’s a hot topic for the EEOC or it portends some type of class-action value.” Merrily Archer explained in a recent BLR webinar.
Generally speaking, when you receive an EEOC charge, it typically includes a request for a response in the form of a position statement. This allows you to tell the company’s side of the situation at hand. Do this well, and you could shorten the process and increase the likelihood that the EEOC will agree with your position.
“I have seen that brief, story-based, EEOC position statements can actually work better than long, overly-legalistic, expensive position statements prepared by attorneys. Because the truth of the matter is, is EEOC investigators (who are going to be deciding this charge’s fate) really don’t like attorneys very much.”
4 Common Mistakes in Creating an EEOC Position Statement
While creating your own EEOC position statement is often your best bet, there are still many things to avoid if you want it to be successful. Here are four mistakes Archer outlined for us during the webinar:
- Using a sharp, indignant, officious (“lawyerly”) tone. This tone is simply going to make the EEOC look even closer into the details.
- Being hyper-critical of the charging party. If you insult the person in question, you lose your own credibility as a good employer. For example, if you harp on performance issues, you inadvertently highlight that you were unable or unwilling to properly manage a poor performer. “If you take this sharp, indignant, lawyerly tone that’s very, very hyper-critical, chances are, that’s going to do more harm than good.” Archer confirmed.
- Including only perfunctory and unpersuasive statements. For example, if the EEOC statement simply says “We deny discrimination. We fired her because of [blank].” That will look as though you’re not taking it seriously. Even if the charge probably won’t go anywhere, say more than the minimum if you want to shut down the risk as quickly as possible. A statement that is too short and perfunctory may inspire the investigator to want to ask more questions.
- Being too long-winded with lawyerly overkill. The opposite of the last point, it’s also a mistake to be too long-winded and include too much legalese. In fact, including legal citations to applicable case law can backfire because the EEOC is most persuaded by its own regulations. Archer explained: “The EEOC is not persuaded by case law. In fact, what you have to understand, is that a lot of times EEOC attorneys and EEOC personnel are pursuing an investigation or are pursuing a prosecution because they’re actively trying to change the law in that jurisdiction.”So, what happens with these long position statements where there’s lots of brilliant legal citations to applicable circuit-level and district-level authority, is that the EEOC doesn’t care. And you have just handed over your playbook when the charging party and her attorney gets the EEOC’s file under the Freedom of Information Act. In fact, the EEOC is most persuaded by its own regulations and its own policy guidance that regular folks like us can find on its website.”
By avoiding these common mistakes, you’ll increase your chances of the EEOC deciding in your favor.
For more information on creating EEOC position statements, 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.