HR Practice Pointers For Responding To EEOC Charges

Volume 15, Issue 21
September 14, 2016

If you have received a Charge of Discrimination recently from the U.S. Equal Employment Opportunity Commission (EEOC), you may have noticed that the EEOC has implemented an on-line portal for use by both claimants and employers. This portal is intended to increase the agency's efficiency. The EEOC has also announced some changes to the way in which charges and responses will now be handled. Whether you rely on counsel to draft your position statements or draft them yourself, here are three important points to understand.

1. Log on to the EEOC's on-line portal as soon as you receive the charge.

When employers receive a new Charge of Discrimination from the EEOC, they are issued a password to access the EEOC's on-line portal. You will submit all documents required during the processing of the charge through this portal. The password you receive is only valid for 10 days. You must use it to log onto the portal before the 10-day period expires or you will be frozen out of the portal. You do have the ability to change the EEOC-issued password. However, the EEOC only keeps track of the originally-issued password. Therefore, if you forget the password you create, the EEOC will not be able to assist you in recovering it.

2. Quickly begin working on your response.

The EEOC will no longer grant routine extensions of time for position statements. Extensions of time will only be given in extenuating circumstances. Thus, the initial deadline assigned by the EEOC for the position statement should be considered your actual deadline. The EEOC announced this change in furtherance of its goal to improve efficiency in processing charges.

Clearly, the work of responding to the charge needs to begin as soon as it is received. If you plan to have counsel prepare a position statement, immediately forward the charge to him/her as well as the documents related to the matter. If you are preparing the response, work should begin quickly.

If additional time is needed to respond, you may want to consider electing mediation (when offered). Participation in mediation does not obligate an employer to resolve a charge. Electing mediation postpones the deadline for a written response to the charge until 30 days after mediation is unsuccessful.

3. Exercise caution with the information you provide to the EEOC.

As we discussed in February, the EEOC is now releasing employer position statements and supporting exhibits to the Charging Party and his/her counsel upon their request. The EEOC will not notify you if there is a request, and you will not be advised that your materials have been shared.

This disclosure means that you must be very careful about what you include in and attach to your position statement. Including facts in a position statement that are damaging or not 100% accurate can seriously harm your ability to obtain a favorable result if the matter eventually proceeds to litigation. In addition, furnishing documents or other materials that are harmful to your position or that contain sensitive, confidential, or unnecessary information should be carefully considered since, with few exceptions, this information will now very likely end up in the possession of the opposing party and his/her counsel.

KZA's attorneys are available to help you determine what information should be submitted to the EEOC and how best to respond to a charge. Feel free to contact us if you have questions or would like us to assist you.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.