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Your defense against an EEOC discrimination claim

by on May 12, 2009 · 0 Comment POSTED IN: HR Info Center

EEOC discrimination cases are won with great position statements

Rebut the EEOC discrimination claims by explaining your anti-discrimination policy
Explain what your EEO policies are because you want the agency to understand that your company takes EEO laws seriously. You don’t tolerate employment discrimination or harassment. You want to explain what policies you have in place. If appropriate, you want to quote key provisions from your handbook.

If the complainant did not make any internal complaints of discrimination, you want to emphasize that fact by explaining the company’s procedures for making employees aware of the complaint procedure, such as your policy on harassment and investigation of complaints.

You might want to tell them that you provide a copy of the handbook to all new employees during orientation. The complainant signed a receipt showing that they had the handbook.

Show a complainants failure to use corporate complaint system
That’s especially important when you’re dealing with EEOC discrimination claims of harassment. A complainant’s failure to make an internal complaint and to exhaust internal company procedures for reporting and investigating claims of harassment can be a key factor in a company avoiding liability.

If someone didn’t complain, you want to be very clear – make it very clear that you had a process, everybody knew what the process was and this person didn’t follow it. Then explain the complainant’s employment history with the company and the non-discriminatory reasons for the adverse employment action. Explain the facts in chronological order so it’s easy for the reader to follow. Again, remember, you’re telling a story.

You’re going to talk about when the person was hired, what position they were hired for, and relevant subsequent changes in position. If the job responsibility is irrelevant, you would explain that as well.

You can attach and you should attach some documents to the position statement. One thing might be a job description that’s relevant and if you’ve got one. You also want to include facts relating to the person’s hiring which are relevant to your defense.

Respond the EEOC discrimination claim with your facts
For example, let’s say the EEOC discrimination claim is based on age but the complainant was within the protected age group at the time hired. So, you would want to note the complainant’s age when hired. “Gee, the complainant was 50 when they were hired. They were 54 when they were terminated.” Okay, that doesn’t exactly give rise to an inference of age discrimination.

In this section ,you’d want to explain the circumstances and the facts that form the basis for the non-discriminatory employment decision that your company took; what led the company to take the action, who made the decision, why was that decision made. Hopefully, if you’ve made a decision, you’ve got reasons for that action. Include these in the rebuttal to the EEOC discrimination claim

Evidence of non-discrimination is a great defense against EEOC discrimination claims
You also want to include in the position statement affirmative evidence of non-discrimination. When you’re responding to a charge, it’s important to focus not only on the specific allegation but also provide any other affirmative evidence in your response to the EEOC discrimination claim.

For example, in an age discrimination case, if the demographics of your workforce or that employee’s department which are helpful, you would want to include those in the position statement.

In a pregnancy discrimination case, if you have other female employees who have gone on maternity leave, delivered their babies, and then successfully returned to work, you may want to talk about that if that’s what somebody is complaining they were discriminated against for.

If others not in the complainant’s protected group, engaged in similar conduct were they treated similarly? For example, a black complainant who was discharged for absenteeism and is complaining of discrimination to the EEOC. Can you identify non-black employees who were also discharged for absenteeism to show this is how we proceed with discipline? This doesn’t have anything to do with race, with national origin, with religion, et cetera.

You also want to consider other possible defenses that your company might have to liability. So, in addition to factually explaining why the charge is without merit, the position statement should also include an analysis of legal defenses to liability.

Edited remarks from the Rapid Learning Institute webinar: “In EEOC’s Crosshairs? How to Prepare an Airtight Response and Avoid Costly Payouts” by Alyssa T. Senzel on February 04, 2009

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