Describe the EEOC complaint with detail and in chronological order
Describe the job
If the complainant has been in the company for a very long time and they had many, many different job changes, you don’t need to go through a long description of all of that. You just want to hit the relevant components. Give the EEOC a clear picture of who this person is and what their role is with the organization.
So, you’re going to go through the positions, attach copies of job descriptions if available and if relevant to the EEOC complaint. Include facts related to that person’s hiring, which are relevant to the defense.
Refute the discrimination claim in the EEOC complaint
Let’s say, somebody files a race and age claim. When they were hired, they were within the protected age category. They were over 40 when they were hired, well, that’s a good thing to note, because that really bolsters your case, that they weren’t terminated or otherwise treated differently based on their age. Similarly, if the manager, who hired them was in a protected age category, that’s also something that you would want to know.
Explain the facts behind the EEOC complaint
You want to explain the circumstances and facts, which form the basis for the non-discriminatory employment decisions. What led you to take this action? Who made the decision? Why was it made? And that’s the part where you want to super-duper check your facts, make sure they’re correct.
If it’s a lay-off situation, you want to be clear about why you picked the person X over person Y. And that’s going to be the crux of what they are looking at.
Have evidence of non-discrimination in your EEOC complaint
Include some affirmative evidence of non-discrimination. You don’t want to focus just on the specific allegations that the complainant raised, but also provide this other evidence of non-discrimination.
For example, you’ve got an age case. What are the demographics of the department that the individual worked in or of the company’s workforce as a whole? Is it helpful to include that information because it shows that the workforce is over a certain age and that an age claim is really unlikely to be a strong claim in the EEOC complaint.
If you’ve got a pregnancy discrimination case, can you point a situation where there are other employees who have gone on maternity leave and then successfully returned to work? Those are the kind of things you would also want to include to bolster your position.
Have others who are not in the complainant’s protected group engaged in similar conduct and then treated similarly?
So, let’s say, you’ve got a complainant who is black and said, that they were discharged based on their race. You say they were discharged based on excessive absenteeism, can you identify non-black employees who were also discharged for excessive absenteeism. You always want to show that you’re treating similarly situated people similarly. If the company is not treating people the same, you must have a legitimate non-discriminatory reason for treating people differently.
At the end of the position statement, you’re going to summarize your position once again like you did at the beginning and request that the EEOC complaint be dismissed.
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 8-1-07
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