Crafting an Effective Written Response to an EEOC Complaint

No one ever wants to receive an EEOC complaint. But a well-documented, fact-based response gives HR the opportunity to protect the organization and demonstrate compliance.

At this point, it’s not about the employer’s investigation.

EEOC Timelines: What HR Needs to Know

Once the EEOC notifies an employer that a charge has been filed, the clock starts ticking: Generally, you have 30 days to respond.

You can file for an extension, requesting another 30 days. But understand where the agency stands: Your extension isn’t guaranteed. It’s a request that can be approved or denied — so you still want to be ready with a position statement in the event an extension is denied.

If you file for an extension, you’ll need to show certain things to get the approval. That includes, but isn’t limited to, showing your good-faith efforts and the need for more time to make your case.

Develop a Legally Sound Response to EEOC Complaint

Position statements, along with any supporting documentation, are an employer’s opportunity to lay out your own version of what happened.

The goal is to specifically explain to the EEOC the legitimate business reasons why any adverse employment actions were taken against the complainant.

So, a position statement that lacks detail can lead the EEOC to believe an employer is trying to hide something. For example, saying an employee was laid off for “business reasons” is weak. You’ll want to lay out the exact business reasons.

What’s more, the statement can be used in legal proceedings if the case goes to trial. To be thorough, you’ll want experts and/or legal counsel to review the response thoroughly and verify the accuracy of every statement.

Building the Case in for an EEOC Response

 A solid position statement includes these seven key sections:

1. State Your Commitment

While this won’t influence the legal merits, it signals good-faith compliance on your behalf. You’ll want to start the statement by establishing your commitment to prohibiting bias in the workplace and ensuring equal opportunities for all candidates and employees.

This section should only be a few sentences, just enough for readers to understand that the company takes the bias charges seriously.

2. Summarize Your Case

Wrap up your case in a paragraph or two. Use this part to create context for the situation, so the reader can learn where the company stands.

You can state your conclusions well before the end of the position statement. But be sure to stick to the facts. Don’t slander anyone or say unnecessary negative things that aren’t relevant to the complaint.

Be brief. But don’t confuse brevity with informality. You want to follow or mirror the structure of the complaint. Specifically, follow the complaint and respond to each item in order so that the agency investigator can easily follow your rendition of the events.

This is important because it shows the EEOC that your team took the complaint seriously.

Write with the assumption that every sentence may be read by the EEOC investigator, internal counsel, opposing counsel and possibly a judge or jury. Clarity, professionalism and credibility matter. The best statements are written in a way that someone not involved with the case can understand why the company did what it did.

3. Address Each Claim Clearly and Directly

After summarizing the facts, address the complainant’s legal claims. The best responses lay out the law that was allegedly violated, and, in a couple of brief sentences, your position on the allegations. This section is also meant to create context. (A more complete response will be in a later section of the document.)

In this section you’ll want to identify each legal claim raised in the complaint, such as discrimination under Title VII, failure to accommodate under the ADA or retaliation under the ADEA. Then you provide a brief but clear statement of the company’s position on each one. For example:

• Claim: Discrimination based on race under Title VII
• Response: The company denies this allegation and maintains that the termination was based solely on documented performance issues, not the employee’s race.

List each claim separately to show you have reviewed and understood the legal basis of the complaint. Go beyond summarizing the facts. Link each claim to a relevant law and give a preview of the company’s defense.

Think of this as the outline of your legal argument, not the full essay.

4. Clarify Your Policies

Clarify any policies and procedures relevant to the case. You’ll want to include copies of each policy with the documentation that accompanies the position statement.

And ensure policies were in effect at the time of the alleged incident and were communicated to the employee (e.g., onboarding, handbook acknowledgment).

5. Get Comprehensive with the Specifics

The next section contains the employer’s argument and is the most comprehensive part of the position statement. You want to identify all the facts in a clear order, backed by an in-depth analysis of why the company’s actions were legal and non-discriminatory.

For instance, if a worker claims a company didn’t do enough to accommodate his disability, the statement should lead the reader through all relevant facts from beginning to end to show why it did everything it could to provide a reasonable accommodation — and answer any questions that might arise.

In this example, there are a number of questions that need to be addressed.

• When did the company become aware of the employee’s potential disability?
• How did it respond?
• What accommodations, if any, were made?
• How did the employee respond?
• If problems occurred, when did the firm become aware of them?
• How did it respond to any complaints filed?
• What company policies and procedures were cited to support the company’s actions?

Regardless of law that was allegedly violated, you’ll also want to explain:

• Who made the decision. Identify each individual involved in the final decision, including their role and relationship to the complainant, to demonstrate objectivity and distance from any alleged bias.
• The decision-making process that was followed. Outline the specific steps, criteria and policies used to reach the decision so it is clear that it was consistent with standard procedures and free from discrimination.
• A comparator analysis. If using comparators, document how their misconduct or performance issues were similar in scope and consequence. You can bolster your argument by showing how similarly situated employees were treated. It can go a long way in proving a company didn’t discriminate against an employee.

Employers should also include and mention all communication regarding the accommodation process, including e-mails, memos and documentation of telephone calls and/or conversations. These documents should be attached to the end of the position statement and referred to and cited throughout for the reader to easily find (for example, Exhibit A, B, C, etc.).

6. Wrap it Up

Finally, firms will want to close with a brief conclusion. No more than a couple sentences, the conclusion should end with a request that the agency issue a “no cause” finding in the complaint.

The conclusion should reinforce that the evidence shows no violation of law occurred and request a ‘no cause’ determination.

7. Have Legal Review the Draft

Before submitting the statement to the EEOC, have your legal team review the entire response to ensure accuracy, consistency and legal defensibility.

This is your last chance to catch anything that might create risk later, and the watchful eye of legal counsel can prevent issues.