Equal Employment Opportunity Commission (EEOC) charges have clearly become a cost of doing business for many (if not most) employers today. Like anything else, employers can get into a routine—or maybe even a “rut”—in investigating and responding to charges. This article provides a refresher on how to successfully defend EEOC and other agency charges both before and after they hit your desk. 
Build good evidence before the charge
A successful defense begins with having good policies and practices well before a charge is received. Perhaps no policy is more important than an equal employment opportunity (EEO), nondiscrimination, and antiharassment policy. Like all other policies, this policy should be routinely reviewed and updated to ensure it covers all legally protected statuses and contains critical provisions such as reporting paths and EEO statements. The policy should provide for a workplace free from inappropriate conduct, address reasonable accommodations, and have an antiretaliation provision. Also, don’t forget to obtain signed and dated handbook acknowledgments following each revision.
Additionally, as many employers are aware, discipline and discharge are frequently the impetus for an EEOC charge. Before imposing discipline, employers are wise to analyze the “big picture” and consider how similar situations have been handled in the past. For better or worse, those situations may be the relevant comparators when defending an EEOC charge or a lawsuit. Also, think about whether there are witnesses from whom you must obtain statements. If so, don’t forget to have them legibly sign and date the statement. Today’s fluctuating workforce often results in key witnesses leaving the company long before it receives a charge, which can be detrimental to an employer’s defense.
Discipline should be specific and factual. It should incorporate examples and supporting documentation when appropriate, reference any similar incidents in the past, and provide a warning of what may happen in the event of another infraction. Like other employment actions, discipline should always be well documented. If possible, discipline notices should be signed and dated by the employee and placed in his personnel file with documentation of any negative reaction.
When a charge hits your desk
Of course, even the most up-to-date policies and disciplinary practices can’t prevent all charges. When a charge hits your desk, there are a number of steps that must be swiftly taken to protect your company’s interests in successfully defending the charge and obtaining a favorable result should the matter proceed to litigation.
To begin, keep in mind that a charge puts employers on notice of potential litigation. That triggers an ongoing obligation to preserve all relevant documents, data, and information, regardless of where they are located and in which format they are stored. Additionally, if you have employment practices liability insurance, notify your carrier of the charge to avoid a potential loss of coverage.
Response deadlines must be promptly reviewed and put on a calendar. Most (but not all) complete EEOC charges include two deadlines—one for a mediation response and one for a position statement. (Note: State and local agencies have different deadlines, so read all documents very closely.) If mediation is offered, quickly considering the “pros” and “cons” of the mediation process in light of the charge may be useful. If you require additional time to consider mediation, complete your investigation, or prepare a position statement, timely request a brief extension from the EEOC representative assigned to the charge.
Once you have dealt with preliminary matters, it’s time to move forward with an investigation. Often, it can be useful to meet with the decision maker to get her “take” on the charge. Follow that by identifying and reviewing key documents, conducting witness interviews, and examining helpful (or potentially harmful) comparative information. Always remember that things are “business as usual” while an investigation is under way. A perception that you are somehow retaliating against a current employee who filed a charge could result in a second charge.
The position statement
Assuming the charge has not been resolved by this point, it’s time to draft a position statement. Consider whether the charge has any procedural defects that must be highlighted for the investigator. For example, is the charge untimely or unsigned?
Always remember that the position statement is your chance to tell your side of the story, so take a moment to think about effectively organizing the statement in advance. It often works well to include an introduction, a statement of facts, an argument, and a conclusion:
- The introduction should make clear that this is your position statement and supporting documentation in response to the charge and that the statement is subject to being updated if new information becomes available.
- The statement of facts may include, among other things, a summary of key policies and a description of your business (e.g., nature, location, and key players). It can then move on to the facts relevant to the charge.
- The argument should address each of the charging party’s key allegations. A failure to address arguments or allegations (even if inadvertent) can raise a red flag. Also, it is useful and persuasive to point out inconsistencies, misrepresentations, and intentional omissions in what the charging party has told the EEOC. Consider including additional evidence that negates an inference of wrongdoing—for example, favorable statistics or evidence that employees outside the protected class were treated the same as the complaining employee.
- After you cover all of that information (and in many cases, more), the conclusion can be short and to the point. It should invite the investigator to contact you if she needs additional information at a later time.
Once the position statement is drafted, consider submitting exhibits and supporting documentation with the statement. Always review exhibits and supporting documents to ensure they are not problematic and do not invite further investigation by the EEOC. Don’t forget to redact personal identifiers (e.g., dates of birth and Social Security numbers) before submission.
Need to learn more about how to create a powerful position statement? Watch “EEOC Position Statements Explained: How Your Response Can Make or Break a Discrimination or Retaliation Claim ” on demand. Use this on-demand webinar as a seasoned employment attorney shows you defense techniques in EEOC position statements and provide an effective framework for using them. Plus, you’ll learn what you can do to proactively defend those claims. For more information, click here.
Post-position statement issues
In the weeks and months following the filing of a position statement, employers can face a number of hurdles, including requests for information from the investigator and on-site investigations. Requests for information are more frequent in some types of cases and from some agencies (e.g., if the charging party is represented by aggressive counsel or the agency suspects systemic discrimination). However, don’t be afraid to negotiate with the investigator regarding the scope of the requested information or the response deadline. Always keep in mind that the EEOC has subpoena authority. For on-site investigations (which may include witness interviews and file reviews), it’s best to involve counsel in preparations early. Planning, preparation, and organization will likely pay dividends.
Bottom line
EEOC charges and investigations come in many shapes and forms, posing different questions and challenges along the way. By refreshing yourself on best practices and adopting a thorough (and creative) approach, you can position your company for a favorable result.
Ryann E. Ricchio is an attorney with Faegre Baker Daniels LLP in Indianapolis, Indiana. She may be contacted at ryann.ricchio@faegrebd.com.