How to Respond to an EEOC Charge of Discrimination

Receiving the Charge

When an employee or former employee files a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), you will receive a notice by mail. The charge will identify the complainant, the basis of the alleged discrimination (race, sex, age, disability, religion, national origin, etc.), and a brief description of the alleged unlawful conduct.

Do not panic, and do not retaliate. Receiving a charge does not mean a finding has been made against you. It means the EEOC is investigating a complaint.

Immediate Steps

Preserve all relevant documents. The moment you receive a charge, issue a litigation hold notice to anyone who may possess relevant records. This includes emails, personnel files, performance reviews, text messages, and any electronic records. Destroying documents after receiving a charge can result in severe sanctions.

Notify your insurance carrier. Employment practices liability insurance (EPLI) may cover defense costs and settlements. Check your policy and notify the carrier promptly, as late notice can jeopardize coverage.

Engage legal counsel. While not strictly required, the position statement you submit to the EEOC becomes a critical document. Having an employment attorney review or draft it is a sound investment.

Conducting an Internal Investigation

Before drafting your response, conduct a thorough internal investigation:

1. Review the charging party's complete personnel file, including hiring records, performance evaluations, disciplinary actions, and any prior complaints.
2. Interview the accused supervisor or manager, as well as any witnesses identified in the charge.
3. Review applicable company policies — anti-discrimination policy, complaint procedures, the employee handbook.
4. Gather any comparative evidence showing how similarly situated employees were treated.
5. Document your investigation in writing.

Drafting the Position Statement

The EEOC will typically ask for a written position statement, usually due within 30 days. This statement is your opportunity to present your side of the facts. Key elements include:

• A clear description of your business and the charging party's role
• A direct response to each allegation in the charge
• The legitimate, nondiscriminatory reason for each employment action at issue
• Supporting documentation — performance reviews, attendance records, written warnings, witness statements
• Relevant policies that were followed

Be factual and professional. Avoid inflammatory language about the charging party. Focus on demonstrating that your employment decisions were based on legitimate business reasons.

The Investigation Process

After receiving your position statement, the EEOC may request additional information, conduct on-site visits, or interview witnesses. Cooperate fully — obstruction can lead to subpoenas and an adverse inference.

The EEOC may also suggest mediation. This is a voluntary, confidential process that can resolve the matter faster and at lower cost than continued investigation or litigation. Mediation is often worth pursuing, even when you believe the charge lacks merit.

Possible Outcomes

• Dismissal: The EEOC finds no reasonable cause and issues a Dismissal and Notice of Rights (a "right to sue" letter) to the charging party.
• Cause Finding: The EEOC finds reasonable cause and attempts conciliation. If conciliation fails, the EEOC may file suit or issue a right-to-sue letter.
• Settlement: The parties reach an agreement at any stage.

Preventing Future Charges

Use each EEOC charge as a learning opportunity:

• Review and update your anti-discrimination and anti-harassment policies
• Ensure managers receive regular EEO training
• Maintain consistent documentation of performance issues and disciplinary actions
• Apply policies uniformly across all employees
• Provide multiple channels for employees to raise concerns internally before turning to external agencies

A consistent, well-documented approach to employment decisions is your strongest defense against discrimination charges.