The EEOC implemented its new “…nationwide charge process procedures that provide for the release of the Respondent’s position statements and also non-confidential attachments to a Charging Party or her representative upon request during the investigation of her charge of discrimination…” This is a good thing only if you know how to successfully navigate the administrative Charge process.
This type of production is nothing new and it has been implemented by some EEOC regional offices. On the federal side, agencies have been releasing entire Reports of Investigation (ROI) to complainants for decades. Federal agency complainants can provide rebuttals to testimony given by management officials while the investigation is still ongoing, and the Complainants get a sanitized version (redacted confidential information) of the ROI when the investigation is completed. The federal system has not disintegrated into bedlam as a result.
Soon a charging party in the private sector will be able to obtain a copy of the employer’s position statement and can provide, if so inclined, responses to the position statement. In all disparate treatment cases, charging parties are expected to show that an employer’s articulated reasons for an employment action are bald-faced lies or a pretext for discrimination. It’s called burden shifting, and charging parties cannot try to fulfill this obligation without knowing an employer’s arguments/statements. Sharing information with charging parties in all types of cases has always been part of the administrative fact finding process, so everyone just relax and work it to your benefit.
Some state agencies require employers to send the charging parties copies of the position statements. The Pennsylvania Human Relations Commission is just one example. This is not an entirely new phenomenon.
But how can an employer possibly benefit from this new program? The position statement is a powerful instrument, and it is the employer’s best opportunity to make a great first impression with the EEOC. So, take full advantage of it. But the employer should understand that the position statement is written for two audiences: the EEOC and the charging party and his/her attorney.
The EEOC investigator is the first person the position statement must persuade. The objective is to garner a quick closure without any escalation [e.g. Request for Information, on-site investigation, or fact finding conference]. A cogent and factually accurate position statement can accomplish this. It’s never a good idea to agitate the EEOC or any state agency with vague, defensive or legalistic position statements, which will likely prolong the process. Extending the process will only further impose on precious operational time while increasing legal fees. It’s like one EEOC Director once told me in a potential systemic discrimination case, “Just do what do what you guys do best; tell me the story.” The best stories in the EEO line of work are short, persuasive ones: Introduction, Body and Conclusion. Boom! The EEOC dismisses the case more often than not when using this simple formula. But the charging party still has time to file a lawsuit. Thus, the position statement has to make an impression on the charging party and his/her attorney.
The ultimate audience for the position statement is the charging party and his/her attorney because these two can force an employer to spend five to seven figures defending against a lawsuit. So, let them have a copy of the position statement so they can better evaluate the merits of the case before deciding to file a lawsuit. The position statement might be the first time the charging party and his/her attorney really understand the reasons for the employer’s actions. Keep in mind that a plaintiff’s attorney has only heard the charging party’s “super-awesome” version of the story. That changes when the attorney gets a copy of the position statement, which is like the CARFAX of the EEO complaint world. Most other areas of law do not have a similar – and remarkably beneficial — means to share and contemplate the facts before filing a lawsuit. A well written cohesive position statement has the power to dissuade the charging party and his/her attorney from filing a lawsuit. It gives them pause. The charging party might think twice about paying a hefty retainer and hourly rate, and a plaintiff’s attorney will likely decline to offer a contingency fee arrangement if the facts are less than “super-awesome.” Moreover, the ridiculous $100,000 “non-negotiable demand” made before the employer submits a position statement usually drops like a lead balloon to under $10,000 after a charging party and his/her attorney get a copy of the convincing position statement. Then, the employer might be able to settle for around $2,500.00 or less, assuming the case warrants settling.
Some employers and defense attorneys may want to cry foul because the employer does not get an opportunity to respond to the charging party’s response. We say, “No worries!” A charging party’s response (often confused or emotive) to a position statement should never change the seminal good facts presented in a well written position statement. Charging parties responding to the position statements is really nothing new. An EEOC investigator will sometimes reach out to an employer for more information after discussing the position statement with the charging party. Of course, the strategy discussed above is only effective if the charge investigation and resulting position statement are equally outstanding. A weak investigation followed by a poorly written position statement will likely result in agency escalation and possibly a Probable Cause Finding, even when the facts are favorable for the employer. And a plaintiff’s attorney who may have been only been marginally interested in the case suddenly becomes extremely interested. The message and the messenger matter when responding to EEOC charges. Note; the prudent employer should never submit a position statement if the facts are bad, and should opt instead to negotiate a reasonable conciliation/settlement.
We at Bashen have always advocated for giving the Charging party and his/her attorney a copy of the position statement (minus confidential and/or proprietary information) for these reasons. The results discussed above are actual, not theoretical propositions.
I invite everyone to send questions or comments on this blog. Please visit our website at www.bashencorp.com for more information about Bashen Corporation’s EEO services and its patented EEO Claims Management software, LinkLinePlus.