Although it is difficult to ascertain the percentage of discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) that ultimately result in lawsuits, the number is small. For this reason, many companies devote little time and resources to responding to EEOC charges, often assigning the task to the manager in charge of the complaining employee (who has no legal or human resources training) or to a human resources assistant (who has no legal training, has only a superficial familiarity with the complaining employee, and may not command the attention of the employee’s manager to resolve questions).
In many situations, the lack of attention devoted to the EEOC response may not negatively impact the company. In others, however, the consequences may be extremely negative—and costly.
The position statement
Assume that a company (or the complaining employee) has decided not to pursue mediation of an EEOC charge. The company must submit a position statement to the EEOC, explaining the reason(s) for the employment action that is the subject of the discrimination charge. The position statement is not designed to be a legal brief, but an employer should treat it just as carefully.
In fact, one can argue that a company should devote even more care to a position statement than it does to a legal brief. Although it is extremely rare for a jury to see a brief filed with the court, it is rather common for a jury to see a position statement submitted to the EEOC.
If a company takes a position in litigation that it did not take during the EEOC process (e.g., providing a reason for termination that was not included in the position statement), the employee’s attorney will seize on this. For this reason, it is critical that the company determine at the EEOC stage why it took the employment action in dispute, and to remain consistent throughout the EEOC and litigation process.
The EEOC’s request for information
The EEOC frequently couples its request for a position statement with a demand that the company respond to specific requests for information. Companies often respond to these requests simply by providing the EEOC everything it asks for, but generally this is unnecessary and counter to the company’s best interests. These requests for information are used by the EEOC in a broad range of situations, and the specific requests may apply to greater or lesser degrees in various cases. Some of the requests may be overreaching, or arguably irrelevant, in particular situations. Responding to these requests is a balancing act. The company should provide enough information to demonstrate good faith and convince the EEOC there is no merit to the discrimination charge, but it also should seek to avoid providing information that is not directly relevant (and potentially negative to the company), because in the event of litigation the employee can obtain the information submitted by the company through a Freedom of Information Act (FOIA) request.
Recently, many EEOC offices have begun routinely requesting additional information after receiving the company’s initial submission. Although a company does not want to be perceived to be hiding information, knowing that a subsequent request is likely may argue in favor of withholding “borderline” irrelevant information with the first submission. The EEOC’s subsequent request, made after the EEOC has reviewed the company’s initial submission and thus has more factual background, may not seek the objectionable information.
In addition to seeking written information from the company, the EEOC may ask to interview specific employees of the company before issuing a determination on a discrimination charge. If the interviewee is in a supervisory or managerial position, the company has a right to have legal counsel present during the interview.
Although these interviews are not transcribed, and thus the testimony is not available through a FOIA request, there is value to preparing for these interviews as one would prepare for testimony at a deposition or trial. First, a good interview may convince the EEOC there is no merit to the discrimination charge, resulting in a favorable determination and making it less likely an attorney will agree to represent the employee in litigation. Moreover, although an EEOC interview generally is less formal and less stressful than a deposition or a trial, it provides an excellent opportunity to assess how the witness would perform in a deposition or at trial.
Note, though, that the deposition and trial admonition to “only answer the question asked” does not necessarily apply in the EEOC context. Because the interviews are not transcribed and are not available through a FOIA request, and because the company is seeking to convince the EEOC of its position, volunteering information in an EEOC interview is not taboo.
Think of time spent at the EEOC stage as insurance. You hope your premiums (i.e., the time and efforts spent on the EEOC charge) will never be utilized, but in the event of an “occurrence” (i.e., a lawsuit), you will be glad you made the investment.