EEOC Charges: What They Are, and How to Deal With Them

This is notice that a charge of employment discrimination has been filed against your organization…

Getting an EEOC charge is a moment most employers would rather avoid, but it is also a familiar part of managing a modern workplace.

EEOC charges often are filed after an employee is terminated and wants to "get back" at their employer by alleging discrimination (particularly if they left on bad terms). Charges also may be filed by current employees who believe they have experienced unlawful discrimination. Many, if not most, charges do not result in a finding of reasonable cause, but the way you respond can meaningfully affect the trajectory, cost, and risk of the matter.

This is typically an employer’s first formal opportunity to put its position in writing. A well-crafted response may nip the case in the bud, while a poorly drafted one may open the door to yet more issues that were never even alleged.

Here are the essentials that every employer needs to know about what an EEOC charge is, what the process typically looks like, and how to approach a position statement with the level of care it deserves.

What is an EEOC charge?

The EEOC, or Equal Employment Opportunity Commission, is the federal agency responsible for enforcing certain workplace anti-discrimination laws. An EEOC charge is a sworn statement that a charging party signs, under penalty of perjury, alleging discrimination, retaliation, or another unlawful employment practice. It is not a lawsuit; it is, rather, a prerequisite to a lawsuit, and, once filed, triggers a legal obligation on the employer to preserve relevant documents. Employers should also take immediate steps to prevent retaliation: brief the employee’s supervisors, keep treatment consistent, and ensure that any employment actions taken against this employee are supported by documented, legitimate business reasons.

The filing of a charge also launches an EEOC investigation, which is where position statements come in. An employer is typically notified of the charge within ten days of its filing, and has thirty days to respond before the actual investigation begins, which can involve Requests for Information (RFI’s), witness interviews, and even site visits.

If the EEOC conducts an investigation and finds that your company engaged in unlawful discrimination, it can issue a Notice of Right to Sue, attempt conciliation, or, in very rare cases, file suit directly in federal court on behalf of the charging party. It cannot, by itself, issue a judgment against you or award damages to the charging party.

First Steps When Receiving a Charge

The very first thing you should do when receiving a charge is to hire counsel. EEOC investigators handle these matters every day; your best chance at an effective response is by hiring someone familiar with the law and process. Once counsel is involved, you can centralize communications, reduce the risk of an investigator learning of inconsistent or additional information beyond the scope of the charge, and ensure that deadlines and preservation obligations are addressed promptly.

Next, identify your key personnel that have relevant knowledge about the allegations. This will usually be your HR team, any decision-makers, managers or supervisors close to the charging party, and possibly some coworkers as well. Let them know that a charge has been filed, and that you will be working closely with counsel in drafting a position statement pending an investigation. They may be called upon to testify, and should not destroy any documents that may be relevant.

Most important, they should not speak to any investigators, and instead should respond by directing all communications to legal counsel.

Begin compiling a clear timeline of events, the policies implicated, and the documents most likely to be requested. Issue a litigation hold and instruct the relevant personnel not to delete, discard or overwrite potentially relevant materials, which may include emails, texting app chat histories (think Slack or Teams channels), calendars, and notes.

The Position Statement

The position statement is your side of the story. It is your first (and best) opportunity to defend your company, and will serve as the foundation for all subsequent litigation if the matter escalates. Like the initial charge, a position statement is submitted under oath. It is tantamount to a legal brief, and should be treated as such.

A strong position statement lays out the relevant facts in chronological order, cites the applicable policies, and explains the legitimate, non-discriminatory reasons for the actions at issue. It should address the specific allegations in the charge, no more and no less, and avoid speculation, unsupported commentary, or inconsistencies with the documentary record. Assume that the statement and its attachments will be closely examined later, and draft with precision.

You may also attach any documents that support your claim, including relevant policies (or the company handbook), job descriptions, email threads, text message screenshots, attendance records, performance history, prior charges, or anything else that may be responsive. Organize exhibits in logical order (usually in their order of appearance in the position statement) and, where feasible, produce them in a single PDF (extra credit for Bates-stamping them) to make the EEOC’s review straightforward.

The Next Steps

And now, you wait.

The agency may review your position statement and close the matter, issuing a Right To Sue letter without making any finding, or it may request additional information. Follow-up steps can include an RFI, interviews of managers and witnesses, or a conference call with HR. In some cases, the agency conducts an on-site visit.

The best outcome is a finding of no cause. The EEOC will still issue a Right to Sue letter, but the case will automatically lose credibility in court should the charging party decide to pursue it (and they usually don’t).

Alternatively, the EEOC may find reasonable cause and issue a Letter of Determination, and invite the parties to conciliate. That can involve monetary relief (such as back pay) and non-monetary terms, like policy changes, training, and monitoring. If conciliation fails, the EEOC will issue a Right to Sue letter, and the charging party is free to pursue the matter in court.

In a very small handful of cases, usually involving repeat offenses or significant public impact, the EEOC may decide to litigate the matter itself in federal court on behalf of the charging party. This is the worst-case scenario, as the EEOC has substantial resources and subject matter expertise.

As an employer, the best way to protect your business is to implement and adhere closely to a set of robust and consistently enforced nondiscrimination policies, and to address an EEOC charge with a serious, well-supported narrative.

At Luchansky Law, we regularly represent employers in responding to EEOC charges. If you recently received a charge and need to draft a Position Statement, call us at 410.522.1020, or shoot an email over to aj@luchanskylaw.com and we would be happy to help.