The five key components in a position statement to defend against an EEOC claim

by on May 18, 2009 · 0 Comment POSTED IN: HR Info Center

The position statement opens your defense to an EEOC claim

The position statement opening should include the following components in roughly the following order. This is the general way it should precede.

  1. Start with a strong opening statement.
  2. This is a firm denial of the EEOC claim and a brief summary of your company’s position. For example, “This response to the charge of discrimination filed by”, whatever the name of the complainant is, “against the company in which the complainant alleges that he was discharged because of his”, fill in the blank, whatever it is, “race, color, religion, national origin, disability. “The company vehemently denies the charge. As explained in more detail below, complainant was discharged because of…”, and then insert a brief summary of why. For example, excessive absenteeism over an extensive period of time would be a defense against an EEOC claim. Right out of the gate, the statement is summarized, punched it up so that everybody who was reading this can see, this is what we’re talking about. This is where we’re going to get a brief roadmap for what you’re going to see later on.

  3. Explain the nature of the company’s business.
  4. Remember again that the agency really often knows very little or even nothing about the nature of your business. A short paragraph or two to explain the nature of the company’s business will kind of set the stage for the later explanation of why the employment decision was made regarding the complainant was reasonable.For example, if the complainant was a driver who was discharged for failing a drug test, first, explaining the nature of the company, shipping or delivery business and the types of vehicles used by the company’s drivers would put the serious nature of the complainant’s violation into context. So you want to get that right up front. That being said, you don’t want 14 paragraphs about your company’s history and every last thing it does. You really want to be focused on whatever the EEOC claim is really about.

  5. Explain the company’s equal employment opportunity policies, their EEOC regulations.
  6. What you’re trying to do is get the agency to understand that your company takes EEO seriously and will not tolerate employment discrimination or harassment.

  7. Clarify what policies you have in place to avoid an EEOC claim.
  8. If appropriate, you might want to quote key policy provisions from your employee manual. If the complainant didn’t make any internal complaints or discrimination before filing an EEOC claim, emphasize that fact by explaining the company’s procedures for making employees aware of these policies.
    If you’ve got an example like the company’s policy on sexual harassment and investigation of complaints, you want to talk about that, talk about where it is, how they all know about it and how the complainant didn’t use the policy.

  9. Let the agency know that the company gives copies of the handbook to new hires and that new hires sign an acknowledgement of receipt.
  10. If you’ve got the complainant’s acknowledgement signed, good, you can attach that to your position statement.

    This information is especially important when you’re dealing with a EEOC claim because the complainant’s failure to complain to the company and to exhaust internal company procedures for reporting and investigating claims of discrimination and harassment can be a key factor in avoiding liability for the company. Supreme Court cases have talked about that affirmative defense to EEOC claims in the world of sexual harassment.

If somebody doesn’t use your internal procedure, that is helpful to you in raising that defense.

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 8-5-08

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