How to write an EEOC position statement

The importance of a position statement

A position statement is crucial to a lawsuit, if one is subsequently filed. There are numerous cases of lawsuits being lost by the employer because the reasons given in the position statement for an employment action don't match the reasons given during a deposition or during trial. Shifting explanations are always greeted with suspicion by a judge or jury, which will assume you are trying to cover up something, even if that may not be the case.

When you receive notification of a charge, the first thing to do is investigate the allegations thoroughly. Don't guess. You need to know the whole story up front so your position is consistent from the beginning, should it go to trial. For the sake of simplicity, we'll say the employment action was a termination and the former employee is alleging discrimination. Interview everyone who had a part in the decision to terminate. Interview them separately to see if their stories are consistent.

Look at the paper trail

Look at the documentation to see if the employment action is supported by hard evidence. If there was a performance problem, do the performance reviews reflect that? If it's a disciplinary matter, is there evidence of prior discipline and adequate time for the employee to improve before terminating him or her? (In some cases, one action alone will warrant termination without any history of prior offenses. In that case, the incident should be well documented.)

Be sure no one destroys any evidence such as emails. First of all, simply deleting them doesn't destroy them - they can be retrieved. Second, regardless if the email exists in physical form or not, you can be sure the memory of it will live on in the mind of someone, only to be jogged under oath during a deposition or cross-examination. These are the kinds of smoking guns you don't want, but destruction of evidence is equally damaging in a court of law, because the judge or jury will presume you are trying to cover up wrongdoing.

Be thorough in your explanation

The EEOC investigator may not understand what your company does or how it works. You may need to explain your company and its procedures in your position statement so the investigator has an adequate understanding of your business.

Explain your policies and procedures. Attach the pertinent policy and/or handbook section and indicate how the employee violated it. Explain the employee's disciplinary history and what led to the decision to terminate.

State your case

Counter the employee's allegations one by one. Don't skip any. If there are five paragraphs of allegations, counter each paragraph in turn with your explanation and defense. But don't let it end there: Continue by pleading your case, including any evidence you have to support your employment decision.

You will not only want to show how the employee was treated fairly, you will want to show how similarly situated employees were treated in the same way. Consistency is important. If you can't show consistent treatment of employees in similar situations (if there have been any), then again, the worst will be assumed of your organization.

If the employee is charging discrimination but didn't make anyone aware of it internally, show what your policies and procedures are for reporting incidents of discrimination, and provide evidence that the procedures are, in fact, disseminated to employees so they are made aware of them. If you have a signed receipt in the employee's file indicating he or she received a copy of the pertinent policies and signed off on them, include that information.

If the employee is alleging age or gender discrimination, provide examples to show that you don't have a practice of discriminating on the basis of age or gender. Show how women or older workers were promoted into higher level positions, for example.

You should include a statement that you are not waiving any defenses and reserve all arguments and defenses that may exist in relation to the charge, whether or not it is contained in the position statement. This covers you in case additional charges come up during subsequent investigation.

Be specific. If the employee used profanity and banged on a desk or suddenly came within inches of a supervisor in a way which caused the supervisor to flinch, fearing physical harm (which constitutes assault), indicate exactly what was said and done. A detailed description gives the investigator a much better mental picture of what happened rather than a vague statement that the employee was acting irrationally or threatening.

Tone is important

Last, show good faith. Respond in a professional, objective manner, much like a lawyer would. Don't respond with statements that are inflammatory, hostile, or emotional. Don't bring up unrelated problems you have had with the employee - it will look petty and vindictive. Let the words of Sgt. Joe Friday of Dragnet be your guide: "Just the facts."