Five defenses to liability in an EEOC charge

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

Always include defenses to liability in your responses to an EEOC charge

  1. Explain the facts of why the EEOC charge has no merit.
  2. You’re also, in many cases, going to include an analysis of legal defenses to liability. This is where consultation with a lawyer may be particularly important. In some situations, you really won’t need it. You won’t need a legal argument. But sometimes you will.

  3. If you’ve an EEOC charge for harassment, you want to think about liability.
  4. A company is not automatically liable for most cases of sexual or other kind of harassment. If a coworker committed the harassment, the company is liable only if it knew or should have known about the harassment and failed to take appropriate corrective measures.

  5. Assert an affirmative defense to liability
  6. If an EEOC charge says the harassment was committed by a supervisor and there were no tangible adverse job action against the complainant, the company may be able to assert an affirmative defense to liability. This defense would be to show you took reasonable measures to avoid the supervisory harassment and that the complainant failed to avail herself of those procedures. You may want to get a lawyer involved to talk and speak about those affirmative defenses.

    Does the same act or defense apply? For example, was the manager who took the adverse action the same manager who previously hired or promoted the complainant? If so, it will be difficult, not impossible but difficult, for the complainant to demonstrate discrimination.

  7. What about constructive discharge?
  8. Is this a situation where the complainant is claiming that she was forced to quit? If so, the response namely your position statement needs to explain why complainant’s employment circumstances were not so bad that a reasonable person would have felt compelled to resign. So again, these are just some legal arguments that may be pertinent to the defense against an EEOC charge.

  9. After-acquired evidence
  10. One last defense against an EEOC charge is after-acquired evidence. Since the complainant was discharged, have you, the company, learned of any additional misconduct or rules violations that were committed by the complainant while employed that you didn’t know while the complainant was employed.

    If so, if you had known, would you have discharged the complainant for this newly discovered reason? For example, after someone’s been discharged, you may learn that they had, previously unknown to you, been stealing from the company.

    Certainly if you knew that, you might have terminated them at the time. This is called after-acquired evidence. And discovery of such after-acquired misconduct may cutoff any back pay liability for which the company might otherwise be liable.

Summarize your position and request that the EEOC charge be dismissed, be clear, be emphatic and wrap it up. This is how you should end an EEOC position statement.

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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