Consider all other possible defenses against your EEOC claim
In addition to factually explaining why your EEOC charge is without merit — or why the complainant’s EEOC charge is without merit, the position statement should also include an analysis of some legal defenses to liability. Consultation with a lawyer may be particularly important when you consider these types of defenses against your EEOC claim
AN EEOC claim for sexual harassment can center on who the harasser was
If you’ve got an EEOC claim for sexual harassment, a company is not automatically liable from most kinds of sexual or other harassment. For example, the harassment in the EEOC claim was committed by one co-worker against another, the company is liable only if it knew or should have known about the harassment and failed to take appropriate corrective action.
If a supervisor committed the harassment, if there’s no tangible adverse job action against the complainant, the complainant didn’t get fired or demoted or anything like that, they’re just complaining of a hostile environment. The company may be able to assert an affirmative defense to the EEOC claim, by showing that it took reasonable measures to avoid this harassment and that the complainant failed to avail himself or herself of those procedures.
Show the company had an internal procedure for making complaints and this person didn’t use it and they had no reason not to be using it.
Same Actor defense
You may want to try to include a “same actor” defense position against the EEOC claim, which is, was the manager who took the adverse action, the same supervisor who previously hired or promoted the complainant? If so, it makes it for a complainant to demonstrate discrimination.
Is there a constructive discharge part of the EEOC claim? Namely, is the complainant claiming she or he was forced to quit? If so, your response is going to need to explain why the complainant’s employment circumstances were not so bad that a reasonable person would have felt compelled to quit.
After acquired evidence
Another legal defense is after acquired evidence. This is when you’re saying, okay, well, since the complainant was discharged, have you learned of any additional misconduct or rules violation committed by the complainant while employed, but of which you were not aware at the time. If so, if you had known about it at the time, would you have discharged the complainant for those reasons?
For example, let’s say, you fired somebody and after they were fired, you learned that they had been stealing from the company. And you didn’t know they have been stealing from the company. You found that out after they were fired for something else.
Discovery of this after acquired misconduct may cut off your company’s back pay liability for which you’d otherwise be liable. So, those are the kinds of situations where you might want to have a lawyer involved to make sure that they’re preserving those legal arguments.
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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