Authorship of EEOC complaint position statements

This is where consultation with a lawyer may be important. They have HR write the position statement responding to the EEOC complaint, and let lawyers review it. They have had in-house lawyers write the position statement in conjunction with HR. They have had external counsel responding to the EEOC complaint. So, there are many ways. But to get the legal defenses in there, you may want to have counsel involved.

Responses to the EEOC complaint
Some of the matters to consider include things like, was there “the same actor” defense, namely was the manager who took the adverse action the same supervisor who previously hired or promoted the complainant? It will be difficult, not impossible but more difficult for the complainant to demonstrate discrimination.

Corporate defenses in the position statement
Is this a harassment case? In a harassment case, the company is not automatically liable for many cases of harassment. If, for example, the harassment was committed by a co-worker, not a supervisor-subordinate but a co-worker, the company is liable only if it knew or should have known about the harassment and failed to take appropriate corrective measures.

If the harassment was committed by a supervisor but there’s no tangible, adverse job action against the complainant. Namely, the person filing the EEOC complaint didn’t lose their job or get demoted or something like that. The company may be able to show an affirmative defense to liability by showing that it took reasonable measures to avoid the harassment. The complainant failed to avail herself of those procedures, namely she didn’t go and complain, she never told anyone she was being harassed. We couldn’t address it because we didn’t know.

Is this a situation where there was a constructive discharge, namely is the complainant claiming that she was forced to resign? If so, the position statement needs to explain why the complainant’s employment circumstances were not so bad that a reasonable person would have felt compelled to quit. Again, that’s where some reference to case law might be relevant.

Acquired evidence response to the EEOC complaint.
Since the complainant was discharged, the company learned of additional misconduct or rule violations committed by the complainant while employed that you didn’t know of before. For example, did you find that there were falsifications on expense reports? If so, if you had known that while the person was hired, would you have fired them for that? That is one way of cutting off damages that – or a back pay liability showing, “Boy! Even if we did discriminate we would have fired you anyway for this other reason. So, your back pay is cut off.”

So, those are things you may want to get counsel involved to see if they are relevant to the EEOC complaint. At the end of the document you’re going to summarize your position and request that the charge be dismissed.

A couple of specifics in the position statement
Don’t use too many employee names you want to refer to the complainant. And then supervisor or more senior folks, you may want to use their names but I’ll try and keep employee names out of it to the extent possible. If they’re relevant documents refer to them and attach them but you want to be selective in your document use so that you don’t want to send 50 pages along with your position statement.

This next one is really important. Once you’ve got a draft of this document, read it as if you were an outsider, as if you did not work for the company. Think about whether the people on the line in front of you and behind you at the supermarket would find it a persuasive response to an EEOC complaint if they read it or would understand it if they read it because those people, that’s your jury. So you really want to make sure that this is clear and understandable.

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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