FOR EEOC OVERVIEW AND INITIAL ACTION SEE RESPONDING TO AN EEOC CHARGE OF DISCRIMINATION: PART I OVERVIEW AND INITIAL ACTION.
POSITION STATEMENT
After all interviews are completed and all documentation has been gathered, the next, and possibly most important part of the response will be the position statement. Make the EEOC investigator’s job as easy as possible. The response should be clear, concise, and most importantly, complete. If the response is complete from the get-go, the investigation will be accelerated and further requests for more information will be limited.
As the paralegal assigned to the file, you can get the first draft of the position statement off the ground. The following are points that should be included in every position statement:
- Introductory paragraph that denies any discrimination occurred. Give a brief summary of the client’s position that no discrimination occurred. Point out any elements of the Charge of Discrimination that are missing, i.e., is the Charging Party claiming disability discrimination without alleging he/she has a disability.
- Explanation of what the client does. Give a clear overview of the client’s business. Provide all contact information for the client’s company, all contact information for the person responsible for responding to the Charge, and the number of employees with the company. It may be helpful to include an organizational chart as well.
- EEO policies and procedures. Most companies have policies in their employee handbooks that clearly set out the company’s procedures to be followed when any complaint is made. It is important to demonstrate to the investigator that the client stresses the importance of these policies and follows them extensively at all times. Also, if the client has any training materials on anti-harassment in the workplace this is a good spot to add that in.
- Identify key players. For each person introduced in the position statement include their job title, co-worker status to Charging Party, and any other information relevant to the Charge.
- Charging Party’s employment history. The Charging Party’s employment history plays an important role in defending the charge. It is best to include all employment history in chronological order so it is easy for the investigator to follow (are you seeing a pattern? Make it easy for the investigator!) Even if attaching documents, the statement should sufficiently describe all in writing so the investigator does not have to dig through a bunch of paper piles to find relevant info. Documents to include under this section are job descriptions, offers of employment, disciplinary reports (from the event, what was done to discipline, performance improvement plans, and any resulting corrections or non-corrections made by the employee), emails, termination materials, and anything else relating to the Charging Party’s employment history that may prove relevant to the defense.
- Similarly situated employees. One big piece of the puzzle can be explained through employees who were in the same position as the Charging Party, but were treated differently or the same depending on each situation. For example, if the Charging Party is claiming racial discrimination as the reason they were fired, find instances in which a member of a different race (the majority race would be ideal) was fired for the same reason and provide documentation of that instance.
- Evidence in defense of each charge. On many Charge forms there will be multiple “charges” actually listed out as I, II, III, and so on. Respond to each charge, individually, and with supporting documentation. Make sure to correct any misrepresentations in fact made by the Charging Party. If there are any confidential or sensitive documents in defense they must clearly be marked as so.
- Conclusion. Conclude the position statement in much the same way it was started, by denying discrimination occurred, stating that the client acted fairly, and request the Charge be dismissed. This is also a good spot to reserve the right to amend or supplement the response.
REMEMBER: The investigator is not an attorney and any legal or technical terms need to be explained in layman’s terms. Always be respectful of the investigation and especially when referring to the Charging Party. When crafting the position statement think, would I want this to be seen/quoted at trial? Once the position statement draft is finalized, make sure to have the client contact review it thoroughly for any misstatements or missed facts.
After the position statement is finalized, and all questions have been answered on the RFI, go back and double check how the EEOC investigator wants the documents submitted. The EEOC does have an online portal, fax is always an option, and sometimes e-mail can be utilized. Keep an open dialogue with the investigator and be nice, as a good relationship with the investigator will be important to the final outcome of the investigation. (Did I mention, cooperate and be nice? Just checking!)
ALTERNATIVE DISPUTE RESOLUTION
Settlement is always an option after receipt of a Charge. It is best practice to investigate first, weigh possible defenses, and make the decision to offer settlement or agree to mediation. The EEOC offers mediation services at no charge as a confidential way to resolve disputes without a potentially lengthy investigation. A mediator does not decide who is right or wrong, but they are a great “talk-it-out” resource. An investigation can take six months or longer, where mediation can conclude the matter in a few months.
LEARN FROM THE EXPERIENCE
Now that the client has gone through the process of responding to a Charge, it’s a good time to take a look at everything they were not able to provide to the investigator and coach the client on revising their handbook, policies, and procedures. They may also need to consider training their management team, who in turn should train the rest of the workforce. That way, in the event this happens again, the client will be well prepared to respond timely and adequately.
Originally published in South Dakota Paralegal Association’s Reporter, Winter 2018 edition.
[1] The EEOC enforces laws that protect job candidates and employees. However, oftentimes former employees file charges of discrimination after they are separated from employment. Thus, in those situations the charging party is technically a former employee, but the charging party’s claims arose from their time as either a job candidate or an employee.