Affirmative defenses to an EEOC complaint

The position statement can showcase your defense against an EEOC complaint

Tell the story
Explain the facts behind the EEOC complaint in chronological order because more its easy to follow and logical progression. Remember, you’re telling a story.

Clarify things like when and for what position the complainant was hired and any subsequent changes in positions including explanation of responsibilities, if relevant. If this person had 14 jobs over two years and only one of them is relevant, you can summarize as opposed to go through each job duties, for example.

Factual Evidence
You want to include facts relating to hiring which are relevant to the EEOC complaint, even those that bolster the defense claims. If the complainant is making an age claim, they say they were discriminated based on age, and that person was within the protected age group at the time they were hired (they were over 40 at the time hired) You should note in the position statement for the EEOC complaint how old the complainant was when he or she was hired.

The decision
Next thing you want to do is explain the circumstances and facts which form the basis for the nondiscriminatory employment decision, what led the company to take the action, who made the decision, why was the decision made. Think of it as an outsider. If you were reading this position statement, what would you want to see? What would increase your comfort level that the company did the right thing? That’s what we’re looking for in this document.

Defend against the EEOC complaint with evidence
You want to include affirmative evidence of nondiscrimination. When you’re responding to a EEOC complaint, focus on not only on responding to the complainant’s specific allegations but also provide the agency with any other affirmative evidence of nondiscrimination.

For example, in an age case, what are the demographics of your company’s workforce? Does the company have a number of other employees who are over 40 or around the same age as the complainant? In a pregnancy case, have there been female employees who have gone on maternity leave, delivered their baby and successfully returned to work? Have others who are not in complainant’s protective group engaged in similar conduct and been treated similarly? Because we always want to show we’re treating similarly situated people similarly.

For example, if a black complainant was discharged for absenteeism and was claiming discrimination, can you identify non-black employees who were also discharged for absenteeism?

You want to show what the make-up of the workforce looks like, is that helpful? How similarly situated employees outside the protected group have been treated as well.

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