EEOC complaints and defenses to liability

The position statement should also include an analysis of any legal defenses for the EEOC complaints.

Defenses to consider for EEOC complaints
A company is not automatically liable for most cases as sexual or other harassment. If the harassment was committed by a co-worker, the company is liable only if it knew or should have known about the harassment and failed to take appropriate corrective measures.

If it was committed by a supervisor and there was no tangible adverse job action against the complainant, the company may be able to assert an affirmative defense to liability by showing that it took reasonable measures to avoid the supervisor’s harassment, and that the complainant failed to avail herself of those procedures.

These are legal defenses to an EEOC complaints. This is why you might want to have counsel take a look at it to add this type of defense so that you can add this type of position defense.

“Same actor” defense
The “same actor” defense is common in defending against EEOC complaints. Was the manager who took the adverse action, the same supervisor who previously hired or promoted the complainant? If so, it will be difficult, not impossible but difficult for the complainant to demonstrate discrimination.

Constructive Discharge and EEOC complaints
With constructive discharge in EEOC complaints, is the complainant claiming that he or she was forced to quit? If so, the response needs to explain why the complainant’s employment circumstances were not so bad that a reasonable person would have felt compelled to quit.

Acquired Evidence
There’s also a legal concept called after acquired evidence. The question arises, since the complainant was discharged, has the company learned of additional misconduct or rules violations committed by the complainant while employed but of which you were not aware of during employment? If so, if you had known of this misconduct, would you have discharged the complainant for these reasons anyway?

For example, you fired somebody and then you learned later that while they were employed, they have been stealing from the company. Discovery of such after acquired misconduct may cut off a back pay liability for which you might otherwise be liable. Again, those are the legal concepts that you may want to add and you may have the opportunity to add in depending on what the circumstances of the charge are.

Remember always to close the position statement by summarizing the position and requesting that the EEOC complaint be dismissed. Don’t use too many employee names in a statement. Refer to relevant documents about the EEOC complaints and attach them to the statement but be selective in document use. You don’t want to turn in a giant stack of papers that people at the EEOC have to wade through. You’d rather be very focused on what you’re trying to get across.

Edited remarks from the Rapid Learning Institute webinar: “EEOC Charges: How to Prepare an Airtight Response and Avoid Costly Payouts” by Alyssa T. Senzel, Esq. on 2-7-2008