Responding to a Charge of Discrimination

This is the second in a two-part series dealing with responding to administrative charges of discrimination filed either with the Equal Employment Opportunity Commission (“EEOC”), the Texas Commission on Human Rights (“TCHR”), or a local agency, such as the Fort Worth Human Rights Commission. In part one from the Spring 2001 edition of the Newsletter (Handling EEOC Discrimination Charges) we explained the administrative charge process and the agencies’ investigative procedures. In this part we provide guidance for responding to the charge. Responding to a charge of discrimination usually involves two components: (1) preparation of an employer’s “position statement;” and (2) providing documents and answering specific agency questions in response to a request for information (“RFI”).

Should you consult with a lawyer?

It depends. In larger companies with trained and experienced human resources professionals, and depending on the complexity of the charge, responding to the charge can often be handled in-house. For companies with less experienced staff, where the charge involves serious potential liability, e.g., multiple charges or class claims, or where a legal analysis is necessary as part of the response, e.g., asserting an Ellerth-Faragher defense to allegations of supervisory harassment, a lawyer should be consulted. Even where preparation of the response is handled in-house, it is generally a good idea to at least have the response reviewed by counsel before submission to the agency.

What is a position statement?

Simply, it is the employer’s written explanation of non-discriminatory reasons for having taken the adverse employment action(s) about which the Charging Party-that’s EEOC lingo for the person, i.e., your prospective, current, or former employee, who filed the charge-is complaining.

What should the position statement include?

Generally, the position statement should include the follow components in the following order:

• • Start strong-with a firm denial and a brief summary of the company’s position. “This responds to the charge of discrimination filed by [name of Charging Party] against the company in which Charging Party alleges he was discharged because of his [e.g., race, sex, religion, etc.]. The company vehemently denies the charge. As explained in more detail below, Charging Party was discharged because [insert brief summary, e.g., because of excessive absenteeism over an extended period of time.]”

• • Explain the nature of the company’s business.Remember, the agency usually knows very little or nothing about the nature of your business. A few short paragraphs explaining the nature of the company’s business will “set the stage” for your later explanation of why the employment decision made regarding the Charging Party was reasonable. For example, if the Charging Party was a driver discharged for failing a drug test, first explaining the nature of the company’s shipping or delivery business and the types of vehicles used by the company’s drivers would put the serious nature of the Charging Party’s violation in context.

• • Explain the company’s EEO policies. You want the agency to understand the company takes equal employment opportunity seriously and will not tolerate employment discrimination or harassment. Explain the policies you have in place. If appropriate, quote key policy provisions from the employee handbook. If the Charging Party didn’t make any internal complaints of discrimination, emphasize that fact by explaining the company’s procedure for making employees aware of, e.g., the company’s policy on sexual harassment and investigation of complaints. For example, make a point of letting the agency know the company provides copies of the employee handbook to new employees during orientation and that Charging Party signed a receipt for handbook. This sort of information is especially important when dealing with a harassment claim because the Charging Party’s failure to complain and to exhaust internal company procedures for reporting and investigating claims of discrimination and harassment can be a key factor in avoiding liability for the company.

• • Explain the Charging Party’s employment history with the company, and the non-discriminatory reasons for the adverse employment action. Generally, it is best to explain the facts in chronological order so it is easy to follow. Tell the story.
    • • Explain when and for what position the Charging Party was hired and any subsequent changes in positions, including an explanation of the responsibilities of each position. Attach copies of job descriptions, if available. Include facts relating to the hiring which are relevant to the defense. For example, if the Charging Party is complaining about age discrimination and was within the protected age group at the time hired, note Charging Party’s age when hired.
    • • Next explain the circumstances and facts which form the basis for the non-discriminatory employment decision. What led the company to take the adverse employment action? Who made the decision? Why?

• • Include affirmative evidence of non-discrimination. In responding to a charge, it is important to focus not only on responding to the Charging Party’s specific allegation, but also to provide the agency with any other affirmative evidence of non-discrimination.
    • • For example, in an age case, what are the demographics of the company’s work force? Does the company have a number of other older employees? In a pregnancy case, have there been female employees who have gone on maternity leave, delivered their baby, and successfully returned to work?
    • • Have others who are not in Charging Party’s protected group engaged in similar conduct and been treated similarly? For example, if a Black Charging Party was discharged for absenteeism can you identify non-Black employees who were also discharged for absenteeism?

• • Consider other possible defenses to liability. In addition to factually explaining why the charge is without merit, the position statement should also include an analysis of any legal defenses to liability. This is where consultation with a lawyer may be particularly important. Matters to consider include:
    • • Jurisdiction. Does the company have enough employees to be subject to the applicable statute under which the charge has been made?
    • • Harassment Claims. A company is not automatically liable for most cases of sexual or other harassment. If the harassment was committed by a co-worker, the company is liable only if it knew or should have known about the harassment and failed to take appropriate corrective measures. If committed by a supervisor, in the absence of a tangible adverse job action against the Charging Party, the company may be able to assert an affirmative defense to liability by showing it took reasonable measures to avoid supervisory harassment and the Charging Party failed to avail herself of those procedures.
    • • Same Actor Defense. Was the manager who took the adverse action the same supervisor who previously hired or promoted the Charging Party? If so, it will be difficult for Charging Party to demonstrate discrimination.
    • • Constructive Discharge. Is Charging Party claiming she was forced to quit? If so, the response needs to explain why Charging Party’s employment circumstances were not so bad a reasonable person would have felt compelled to quit.
    • • Offers of Reinstatement. Did Charging Party reject an unconditional offer of reinstatement or turn down another job offer? If so, back pay exposure (if any) will likely be terminated.
    • • After-Acquired-Evidence. Since the Charging Party was discharged have you learned of additional misconduct or rule violations committed by Charging Party while employed, but of which you were not contemporaneously aware? If so, if you had contemporaneously known of Charging Party’s additional misconduct, would you have discharged the Charging Party for these newly discovered reasons?? For example, after a discharged you may have learned Charging Party had-previously unknown to you-been stealing from the company. Discovery of such “after acquired” misconduct may cut off any back pay liability for which the company might otherwise be liable.

• • Summarize your position and request the charge be dismissed.

Responding to the RFI?

Generally the response should be separate from, but attached to, the position statement. If possible, narrow the scope of the request. Most agencies have “canned” requests for information depending on whether the charge alleges a discharge, denial of promotion, failure to hire, etc. These are often issued in an information vacuum, with no knowledge about the nature of the company’s business. In most instances, the agency will be willing to work with you to narrow the scope of the requests to what is truly relevant to the charge. Also answer any specific questions asked by the agency. Often the agency will request specific sorts of information, such as the names of all employees disciplined or discharged for the same or similar reasons as Charging Party.

A persuasive, thorough response to a charge of discrimination will substantially lessen the odds of an adverse determination by the agency and of a subsequent suit by the Charging Party.