An Employer's Guide to Responding to an EEOC Charge

A charge of discrimination arrives by mail or through the EEOC's online portal, and it is often the first notice an employer has that a current or former employee believes the law was violated. The charge itself is not a finding of wrongdoing. It is the start of an administrative process, and what the employer does in the first two weeks shapes everything that follows.

Calendar the deadline and notify your insurer

The notice will state a deadline for the employer's response, and extensions are not guaranteed. Calendar it immediately. If the company carries employment practices liability insurance, give notice to the carrier now. Many policies require prompt notice of a charge, and late notice can jeopardize coverage for both the defense and any settlement.

Preserve documents

Once a charge is filed, the employer has a duty to preserve relevant records. Suspend any automatic deletion that would reach the charging party's emails, personnel file, time and pay records, or the files of the decision-makers involved. Destruction of records after notice of a charge, even routine destruction, can support a spoliation argument later. Send a written preservation instruction to everyone who controls relevant documents.

Do not retaliate

Retaliation claims now outnumber every other category of charge the EEOC receives, and they frequently succeed where the underlying discrimination claim would have failed. If the charging party still works for you, instruct supervisors in writing that the employee's schedule, duties, pay, and treatment are not to change because of the charge. Discipline that would otherwise be routine should be reviewed with counsel first, because its timing will be scrutinized.

Investigate before you respond

Interview the people involved and pull the documents before anyone commits the company's account to writing. Employers sometimes respond from memory and learn during litigation that the records tell a different story. The time to discover a problem in your own facts is before the position statement is filed, not after.

Treat the position statement as evidence

The position statement is the employer's written response to the charge. It is also a document the charging party's lawyer can obtain and will use. Every factual assertion in it should be accurate and supported by records, because an inconsistency between the position statement and later testimony becomes an exhibit on cross-examination. A good position statement is factual, documented, and free of argument the evidence cannot carry.

Consider mediation

The EEOC offers mediation in many cases, and it deserves consideration. Mediation is confidential, it is faster and cheaper than the investigation it suspends, and it can resolve a dispute before positions harden. Whether to mediate depends on the strength of the employer's facts and the cost of the alternative, which is a question to evaluate case by case.

The process, briefly

After the response is filed, the agency investigates. It may request more documents, interview witnesses, or visit the workplace. The investigation typically ends in a dismissal and notice of rights or, less often, a cause finding followed by conciliation. Either way, the charging party generally receives a right-to-sue letter and ninety days to file in court. The charge stage is not the end of the matter. It is the record-building stage for whatever comes next, which is why it deserves the same care as litigation.