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Feb 19, 2016

By Eric B. Meyer

If you’ve ever had to address an EEOC Charge of Discrimination, you know that drafting a good Position Statement, in which the specific claims of discrimination are addressed and supported with documents and facts, is key.

This especially holds true now that the Equal Employment Opportunity Commission has announced new nationwide procedures that provide for the release of a company’s Position Statement and non-confidential attachments to a Charging Party or representative upon request during the investigation of a charge of discrimination.

So, how do you draft a Position Statement that both the EEOC and the Charging Party like?

9 tips for a solid EEOC Position Statement

Fortunately, I just discovered this EEOC resource on “Effective Position Statements.” And, since I’ve buried the lede for long enough, here are nine (9) EEOC tips to make your Position Statement shine:

  1. Address each alleged discriminatory act and your position regarding it and provide copies of documents supporting your position and/or version of the events.
  2. Provide a description of the organization; include the organization’s legal name and address, the name, address, title, telephone number and email address of the person responsible for responding to the charge, the primary nature of the business, and the number of employees. A staffing or organizational chart is also useful in helping to focus the investigation.
  3. Provide any applicable practices, policies or procedures applicable to the allegations in the charge.
  4. Identify any individuals other than the Charging Party who have been similarly affected by these practices, policies or procedures; describe the circumstances in which the practices, policies, or procedures have been applied.
  5. Explain why individuals who were in a similar situation to the Charging Party were not similarly affected.
  6. Identify official(s) who made decisions or took action relating to the matter(s) raised in the charge.
  7. Be specific about date(s), action(s) and location(s) applicable to this case.
  8. Provide internal investigations of the alleged incidents or grievance hearing reports.
  9. Inform the EEOC if the matter has been resolved or can be resolved; if it can be resolved, please indicate your proposal for resolution.

A few more things to remember

Also, if you have confidential documents, make sure that you check three boxes:

  • Do not attach confidential documents to the Position Statement.
  • Label them as “Sensitive Medical Information,” “Confidential Commercial or Financial Information,” or “Trade Secret Information” as applicable.
  • Explain why they are confidential.

And, here are a few more tips from me:

  • The Position Statement where you plant your flag and defend your hill. If you later move your flag to another hill (i.e., change your story), you may lose the war.
  • A big recitation of the law is probably not necessary. Indeed, it may distract from the rest of the Position Statement.
  • Ultimately, adding pages to the Position Statement is bad. Write concisely, in active voice, and in plain English.
  • Consider skipping the Position Statement altogether by participating in the EEOC’s voluntary Mediation Program. The success rate is high, and you may end up saving money in the end. (Yes, I’m an EEOC pro bono mediator).

If you have more questions about EEOC Position Statements, check out this resource.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.