As most of you know, the EEOC has gone electric with its charge processing. This includes the electronic submission of documents that have been requested by the EEOC, accepting or rejecting mediation, and of course the electronic submission of position statements. The EEOC has also announced that it will be sharing Respondent’s position statements with the Charging party. These and other changes require a fresh look at how Respondents prepare and submit their position statements.
Recently, the EEOC posted on its website suggestions for preparing effective position statements. This article discusses some of the EEOC’s suggestions and provides additional best practice suggestions. Keep in mind that your position statements will now be provided to the Charging party, presumably along with any documents you provided that were not marked and separated as confidential.
At a minimum, position statements should include specific and factual responses to every allegation contained in the charging documents along with any other facts deemed relevant. The position statement must clearly explain the Respondent’s version of the facts and identify the specific documents and witnesses that support the Respondent’s position. All supporting documents should be provided with the position statement. Providing a detailed factual response along with the appropriate documents may accelerate the EEOC’s investigation and could limit and/or reduce the EEOC’s request for additional information.
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Related Items of Interest:
EEOC Denied "Roving Inspections" and Onsite Inspection of Employee Functions
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The EEOC suggests the following points be included in any position statement:
- Address each alleged discriminatory act and your position regarding it and provide copies of documents supporting your position and/or version of the events.
- Provide a description of the organization; include the organization's legal name and address, the name, address, title, telephone number and email address of the person responsible for responding to the charge, the primary nature of the business, and the number of employees. A staffing or organizational chart is also useful in helping to focus the investigation.
- Provide any applicable practices, policies or procedures applicable to the allegations in the charge.
- Identify any individuals other than the Charging Party (comparables) who have been similarly affected by these practices, policies or procedures; describe the circumstances in which the practices, policies, or procedures have been applied.
- Explain why individuals who were in a similar situation to the Charging Party were not similarly affected.
- Identify official(s) who made decisions or took action relating to the matter(s) raised in the charge.
- Be specific about date(s), action(s) and location(s) applicable to this case.
- Provide internal investigations of the alleged incidents or grievance hearing reports.
- Provide a proposal for resolution if you believe the matter can be resolved.
As noted previously, the EEOC may release your position statement and non-confidential attachments to the Charging party and their representatives. This would allow the Charging Party to respond so the EEOC can then assess the credibility of the information provided by both parties. For this reason, make sure you separate confidential from non-confidential attachments and note them appropriately for easy EEOC identification. The EEOC will not release the Charging party’s response, if any, to the Respondent.
The EEOC notes the following as examples of supporting documentary evidence:
Example 1: Charging Party alleges sexual harassment: You may submit statements or affidavits from witnesses with direct knowledge of the alleged events and/or from the alleged harasser responding to the Charging party’s allegations.
Example 2: Charging Party alleges racial discrimination in pay: You may submit payroll records showing that the compensation of all employees in positions comparable to the Charging party, and information regarding their racial category, criteria for setting pay, and how each employee's pay was determined.
Example 3: Charging Party alleges she was fired because of her age (55): You may submit personnel records documenting the reasons for her termination.
Example 4: Charging Party alleges termination because of pregnancy: You may submit documentation showing your reason for terminating the Charging party.
Segregate Confidential Information into Separately Marked Attachments
The EEOC emphasizes that the position statement should only refer to, but not identify information that the Respondent asserts is sensitive medical information, or confidential commercial or financial information. Where confidential medical or commercial information is relied upon in the position statement, it should be provided in separate attachments to the position statement labeled "Sensitive Medical Information," "Confidential Commercial or Financial Information," or "Trade Secret Information," as applicable. Provide an explanation justifying the confidential nature of the information contained in the attachments. Medical information about the Charging Party shall not be deemed sensitive or confidential in relation to the investigation.
Respondent should segregate the following information into separate attachments and designate them as follows:
- Sensitive medical information (except for the Charging Party's medical info).
- Social Security Numbers.
- Confidential commercial or financial information.
- Trade secrets information.
- Non-relevant personally identifiable information of witnesses, comparators or third parties, such as: social security numbers, dates of birth in non-age cases, home addresses and personal phone numbers, etc.
- Any reference to other charges filed against the Respondent or to other charging parties, unless the other charges are by the Charging Party.
The EEOC will review attachments designated as confidential and consider the justification provided, but the Agency will not condone blanket or unsupported assertions of confidentiality.
Requests for an Extension
The Position statement should be provided by the stated deadline. A brief extension may be allowed in particular cases, but only when due diligence is established. Evidence of due diligence includes a partial submission of information related to the allegations in the charge. Any requests for an extension must be done in writing at the earliest possible time in advance of the due date. Explain why the extension is necessary and specify the amount of time being requested. The submission of a request for extension does not toll the deadline for submitting the position statement.
Upload the Position Statement and Attachments into the Respondent Portal
You can now upload your position statement and attachments into the Respondent portal using the + Upload Documents button. Select the “Position Statement” document type and click Save Upload button to send the position statement and attachments to the EEOC. You will not be able to retract the position statement via the Portal once the position statement has been submitted. Make sure it is final and complete before uploading it.
One should avoid stating the black letter law of Title VII, ADEA, or ADA cases in its position statement as the EEOC presumably is aware of the Charging party’s prima facie case and the Respondent’s defenses. However, from our experience, including citations to similar factual cases as the Charging party can be beneficial to obtaining a favorable finding from the EEOC. This is especially true if you’re lucky enough to have a case that was decided by the federal appellate court covering your EEOC office.
At the end of the day, keep in mind that an effective position statement is clear, concise, complete and responsive. A position statement that simply denies the allegations without providing your position or supporting information will likely be deemed insufficient.
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