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ABA Section of Litigation
Employment & Labor Relations Law

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Practical Tips


Effectively Responding to an EEOC Charge

By Brian Koji

An effective employer response to a charge of discrimination, harassment, and/or retaliation filed with the Equal Employment Opportunity Commission or a similar state agency can mean the difference between a finding of probable cause and a finding of no probable cause. Just as significant, should the matter proceed to trial, an ineffective or factually inaccurate response can be used against the employer, likely with significant adverse consequences to the employer.

When responding to an EEOC charge, the following tips will often prove helpful:

  • Identify Persons to Assist with Response. At a minimum, all managerial employees who were involved in the decisions or incidents that led to the allegation should be included. Rank-and-file personnel with potentially relevant information should also be interviewed. Although it is always a good decision to involve the employer’s general counsel and human resources personnel, litigators should takes steps to ensure that the extra levels of review and fact-gathering do not result in inaccuracies being incorporated into the response.
  • Gather and Review All Relevant Documentation. This will generally include background materials such as the charging party’s personnel file and the employer’s policy manual or employee handbook. Aside from the background documentation, for the response to be effective the commission will also request copies of all documentation pertinent to the personnel decision or incident that is the subject of the charge.
  • Include Information Regarding Job Requirements. For failure to hire or promote claims, an effective employer response will usually include information and documentation concerning the vacancy announcement, established qualification requirements, the charging party’s and successful candidate’s application documents, interview notes, and any other documents relevant to the decision.
  • Include Employer Policies. For discipline, discharge, layoff, and recall claims, an effective employer response will usually include documentation concerning the employer’s relevant policies, the rationale for the employer’s business decisions, any supporting witness statements, a discussion of the treatment of any similarly situated employees, and any other relevant supporting documentation.
  • Include Information Regarding Investigation and Corrective Actions. For unlawful harassment claims, where the most common employer responses assert that the harassment is unfounded, that the employee failed to report it pursuant to a published and distributed anti-harassment policy, or that corrective action was promptly taken after investigation, an effective employer response will include a copy of the employer’s policy, the employer’s investigation, and documentation concerning the corrective measures taken.
  • Include Information Regarding How Policies Are Consistently Applied. For pay and benefits claims, where the most common employer responses assert a consistently applied policy or practice unrelated to an employee’s protected characteristic, an effective employer response will include information regarding the employer’s relevant policies, a description of the policy’s application to the charging party, the treatment of other similarly situated employees, and any other relevant supporting documentation.
  • Counsel Employer to Avoid Retaliation. Attorneys would also be well advised to counsel the employer regarding the prohibition of retaliation. Higher-level managers, first-line supervisors, and any other individuals involved in the underlying allegations, the employer’s inquiry, or the preparation of the EEOC response, should be educated on the employer’s anti-retaliation policy.

Prepared by Brian Koji of Allen, Norton & Blue, P.A. in Tampa, with contributions from Manuel Zurita, Director of the EEOC’s Tampa Field Office, and EEOC Senior Trial Attorney Carla Von Greiff.

This information has been modified from its original format in Employment and Labor Relations Law newsletter, Vol. 6, No. 1 (Summer/Fall 2007).

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