Explain both why the EEOC charge has no merit and include all other possible defenses

You should consider other possible defenses to an EEOC charge. You’re going to factually explain why the EEOC charge is without merit, but you may also want to include an analysis of legal defenses to liability. This is where consultation with an attorney may be particularly important. Even if you’re the one who’s writing the position statement, you might want to get legal input to make sure you’ve covered your entire basis of your EEOC charge.

Knowledge of the event
For example in an EEOC harassment claim, company is not going to be automatically liable for most cases of sexual or other types of harassment. If the harassment was committed by a co-worker against another co-worker, the company is going to be liable for an EEOC charge only if it knew or should have known about the harassment and failed to take appropriate corrective measures.

If the harassment was committed by a supervisor and there’s no tangible adverse employment action; nobody got hired, nobody got demoted, nobody’s salary got reduced, the company may be able to assert an affirmative defense to the EEOC charge by showing that it took reasonable measures to avoid the harassment. The complainant failed to avail him or herself of this procedure. Namely, the complainant did not complain and your handbook had a policy that said you need to go talk to HR or you need to go talk to legal.

If somebody doesn’t avail himself of that, that gives the company a good defense and you’d want to put that in the EEOC charge response.

The same actor defense to an EEOC charge
Another possible legal defense is the same actor defense, namely, was the manager who took the adverse action fire the person, demoted them, the same supervisor who previously hired or promoted the complainant. If so, that makes it really difficult for the complainant to demonstrate discrimination and that’s certainly something you would want to include in the position statement.

Constructive discharge.
Is the complainant claiming that she was forced to quit? If so, your position statement needs to explain why her employment circumstances were not so bad that a reasonable person would have felt compelled to quit, because with constructive discharge, what somebody has to show is my life was so intolerable, I was forced to leave.

After acquired evidence defense against EEOC charges
Finally, the notion of after acquired evidence. Since the complainant was discharged, have you learned of any additional misconduct or violations that the complainant committed while employed? If so, is this something that if you had known about it at the time the complainant did it, you would have discharged the complainant? Namely, the complainant got fired for poor performance and now has filed a charge claiming national origin discrimination.

You subsequently learned that the complainant had been stealing from the company. If you had known that at the time, you would have fired the complainant at the time. And this is called after acquired evidence and discovery of it may cut off any back pay liability for which the company may otherwise be liable.

That’s the kind of thing you also want to pay attention to when you’re putting together your position statement and EEOC charge defense.

After you go through that, at the end of all of your facts and legal arguments and you’re going to summarize your position and request that the EEOC charge be dismissed.

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