Receiving an EEOC charge of discrimination is not unusual -- the EEOC receives over 92,000 charges each year. While this is a serious matter that requires prompt action, the majority of charges are resolved without litigation. Approximately 80% of charges result in a "no cause" finding, meaning the EEOC does not find sufficient evidence to support the claim. However, the outcome depends heavily on how well you respond.
This guide walks you through every stage of the EEOC response process, from the moment you receive the charge through final resolution. The single most important thing to understand: you have 30 days to submit a position statement, the clock starts when you receive the charge, and the quality of that document significantly impacts the outcome.
The moment you receive an EEOC charge, your response matters. Here is exactly what to do (and what not to do) in the first 48 hours.
Do not panic. Receiving an EEOC charge does not mean you have been sued, it does not mean you have been found liable, and it does not mean you will be required to pay anything. It means a current or former employee has filed a complaint alleging workplace discrimination, and the EEOC is giving you an opportunity to respond. This happens to over 92,000 employers every year.
What to Do Immediately
- Preserve all evidence immediately -- Issue a litigation hold (also called a document preservation notice) to all relevant departments. This covers emails, text messages, chat logs, personnel files, performance reviews, discipline records, internal memos, surveillance footage, and any other documents related to the charging party or the events described in the charge.
- Notify your employment attorney -- If you have outside employment counsel, contact them immediately. If you do not, retain one. EEOC charges have strict deadlines, and the position statement you submit will likely be shared with the charging party under current EEOC procedures.
- Notify your insurance carrier -- If you carry Employment Practices Liability Insurance (EPLI), notify your carrier immediately. Most EPLI policies have strict notification deadlines, and late notification can result in denial of coverage.
- Read the charge carefully -- Understand the specific allegations, the protected class(es) involved, the dates referenced, and the relief being sought. Note the charge number and the name of the assigned EEOC investigator.
- Note the response deadline -- Your position statement is typically due within 30 days of receiving the charge. Mark this date on your calendar immediately.
Do NOT contact the complainant about the charge. Do NOT discipline, reassign, demote, or terminate the charging party after receiving the charge unless you can demonstrate with clear documentation that the action was planned before the charge was filed and is completely unrelated. Retaliation claims are filed in approximately one-third of EEOC charges, and they are often easier for employees to prove than the underlying discrimination claim. Many employers who would have won on the discrimination claim lose because they retaliated.
Do NOT destroy any documents, delete any emails, overwrite backup tapes, or allow automatic deletion policies to continue running on relevant data. Destroying evidence after receiving an EEOC charge (spoliation) can result in adverse inference instructions at trial, sanctions, and separate legal liability. Issue a written litigation hold to IT, HR, the accused manager, and any other relevant employees immediately.
The EEOC's average processing time for a charge is approximately 10 months, though complex cases can take significantly longer. During this period, you must maintain your litigation hold and cooperate with any EEOC requests for information. Do not assume silence from the EEOC means the charge has been dismissed.
The position statement is the single most important document in your EEOC response. It is your formal written response to the charge, and it will shape the EEOC investigator's understanding of the facts.
A position statement is your formal, written explanation of your side of the story. It tells the EEOC investigator who you are as a company, what happened from your perspective, and why the charging party's allegations do not support a finding of discrimination. Think of it as a brief to a judge -- it is a persuasive document backed by facts and evidence.
The 30-Day Deadline
You typically have 30 days from receipt of the charge to submit your position statement. Extensions are possible if you contact the assigned EEOC investigator before the deadline and provide a reasonable justification. Common reasons for extensions include: needing time to gather documents from multiple locations, key witnesses being unavailable, and counsel needing additional time to investigate. Most investigators will grant a 15-30 day extension if asked promptly.
Structure and Format
A well-organized position statement typically follows this structure:
- Company Background -- Brief description of your company, its size, industry, and relevant EEO policies. Establish that you are a responsible employer with anti-discrimination policies in place.
- Statement of the Charge -- Restate the allegations to show you understand what is being claimed.
- Denial of Allegations -- A clear, specific denial of each allegation of discrimination. Address each claim point by point.
- Factual Background -- A detailed, chronological narrative of the relevant events from your perspective. Include dates, names, and specific facts.
- Legitimate Business Reasons -- Explain the non-discriminatory, legitimate business reasons for the employment action (termination, demotion, failure to promote, etc.). This is the heart of your defense.
- Comparative/Statistical Information -- If helpful, provide information about how similarly situated employees outside the charging party's protected class were treated in comparable situations.
- Supporting Documents -- Attach relevant documents: performance reviews, disciplinary records, company policies, emails, the employee's personnel file, and any other evidence supporting your position.
Under current EEOC procedures, your position statement (but not the confidential attachments) will be shared with the charging party, who will have the opportunity to respond. This means your position statement should be written with the understanding that the employee and their attorney will read it. Be factual, professional, and avoid inflammatory language. You may designate certain attachments as "confidential" to prevent them from being shared, but the statement itself will be disclosed.
What to Include
- Company EEO policies and training records -- Show that you have anti-discrimination and anti-harassment policies in place and that employees are trained on them.
- The charging party's employment history -- Hire date, positions held, performance reviews, promotions, disciplinary actions, and separation details.
- Specific legitimate business reasons -- Concrete, documented reasons for every adverse employment action. If you terminated someone, explain exactly why with supporting documentation.
- Chronological timeline -- A detailed timeline of relevant events showing that the adverse action was based on performance or business needs, not discriminatory animus.
- Comparator evidence -- How similarly situated employees outside the protected class were treated under similar circumstances.
- Supporting documentation -- Performance reviews, written warnings, emails showing performance issues, attendance records, the employee handbook, and any other relevant evidence.
What NOT to Include
- Admissions of any kind -- Never admit that discrimination occurred or that you might have done something wrong. Do not write "we regret that the employee feels..." as it can be interpreted as acknowledging the problem.
- Speculation or guesses -- If you do not know something, say so. Do not speculate about the employee's motives, mental state, or intentions.
- Personal attacks on the charging party -- Stay professional and factual. Attacking the employee's character, motives, or credibility in a personal way will undermine your credibility with the investigator.
- Overly broad denials -- "We categorically deny everything" is not persuasive. Address each allegation specifically and explain why it is inaccurate.
- Legal conclusions -- Do not write "this does not constitute discrimination under Title VII because..." Leave the legal analysis to your attorney's cover letter. The statement should focus on facts.
- Information about other charges or lawsuits -- Do not volunteer information about other discrimination charges, lawsuits, or complaints unless directly relevant.
Many employers submit position statements that are either too short (a one-page denial) or too long (a 50-page narrative). The ideal length is 5-15 pages plus supporting documents. The investigator needs enough detail to understand your position but will not read a novel. Focus on facts that directly address the specific allegations in the charge.
- Lead with your strongest facts -- If you have a clear, documented performance issue that preceded the adverse action, put it front and center. The investigator should immediately understand your legitimate business reason.
- Be specific with dates and details -- "The employee was counseled on multiple occasions" is weak. "The employee received written warnings on March 3, April 17, and June 12 for attendance violations documented in Exhibits A, B, and C" is persuasive.
- Use the employee's own words against them when possible -- If the employee acknowledged performance issues in writing, signed a corrective action plan, or sent emails that contradict their EEOC charge, include those documents.
- Show consistency -- Demonstrate that you treated the charging party the same way you treated similarly situated employees outside the protected class. If you terminated someone else for the same infraction, show it.
- Address timing issues head-on -- If the adverse action occurred shortly after a protected activity (complaint, pregnancy announcement, etc.), explain the timeline proactively. The investigator will notice the timing; it is better to address it than to ignore it.
- Keep the tone professional -- Remember, the charging party will read this document. Write it as if a judge will read it, because one might.
- Have your attorney review it -- Even if you draft the factual portions yourself, have employment counsel review the final product before submission.
Before you can write a credible position statement, you need to conduct a thorough internal investigation. This investigation serves two purposes: gathering facts for your defense and demonstrating that you take discrimination complaints seriously.
Who Should Investigate
The investigator should be someone who is neutral, has no involvement in the events described in the charge, and has no reporting relationship with the accused or the accuser. The accused manager or supervisor should never conduct the investigation. Common choices include:
- HR professional -- from a different division or region than the charging party, if possible
- Outside counsel -- provides the strongest privilege protection and neutrality
- Third-party investigator -- sometimes the best option when internal resources are conflicted
- In-house counsel -- provides attorney-client privilege but may lack investigation experience
Investigation Steps
- Review the charge carefully -- Identify every specific allegation, the protected class(es), the time period, and the adverse actions claimed.
- Gather documents -- Collect the charging party's complete personnel file, performance reviews, disciplinary records, emails, attendance records, and any communications between the charging party and management.
- Interview the accused -- Get their detailed account of events. Ask open-ended questions. Document their responses in writing.
- Interview witnesses -- Identify and interview anyone who may have relevant knowledge. Ask what they observed directly, not what they heard from others.
- Interview the complainant -- If the charging party is still employed, consider whether interviewing them is appropriate. Consult with counsel first, as this must be handled carefully to avoid retaliation claims.
- Preserve electronic communications -- Collect and preserve all relevant emails, text messages, Slack/Teams messages, voicemails, and other electronic communications. Work with IT to ensure nothing is automatically deleted.
- Analyze comparator data -- Research how similarly situated employees outside the protected class were treated in comparable situations.
- Prepare the investigation report -- Document your findings, including all evidence reviewed, interviews conducted, and conclusions reached.
Privilege Considerations
If the investigation is conducted by or at the direction of an attorney, the investigation report and related communications may be protected by attorney-client privilege and/or work product doctrine. This is important because:
- A privileged investigation report cannot be compelled in discovery if the case proceeds to litigation
- Attorney-directed investigations provide stronger privilege protection than those conducted solely by HR
- However, be aware that privilege can be waived -- if you share the report with non-privileged parties or rely on the investigation as a defense, you may waive privilege
- Label all privileged documents as "ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL" and limit distribution
Document every step of your investigation in real time. Take notes during interviews (or have a second person take notes). Record the date, time, and location of each interview. This contemporaneous documentation is far more credible than a reconstruction created months later when litigation is filed.
Mediation is often the most cost-effective way to resolve an EEOC charge. Smart employers evaluate the mediation option carefully before dismissing it.
Many employers reflexively reject EEOC mediation, viewing it as an admission of wrongdoing. This is a mistake. Mediation is a neutral, voluntary process that can save your company significant time and money, even when you believe the charge is meritless.
Key Advantages of EEOC Mediation
- It is free -- Unlike private mediation which can cost $3,000-$10,000 per session, EEOC mediation costs employers nothing. The EEOC provides trained mediators at no charge to either party.
- It is confidential -- Nothing said during EEOC mediation can be used as evidence if the charge later proceeds to investigation or litigation. This is a significant advantage because it allows candid discussion without legal risk.
- It is faster -- Mediation typically occurs within 60-90 days of the charge, while a full investigation takes an average of 10 months. If successful, the matter is resolved in a single day.
- It is cheaper than investigation and litigation -- Even if you win at the investigation stage, defending an EEOC charge typically costs $10,000-$50,000 in attorney fees. Full litigation costs $75,000-$250,000 or more. A mediated settlement is often a fraction of defense costs.
- You control the outcome -- In mediation, you negotiate the terms. In litigation, a jury decides. Settlement agreements can include confidentiality clauses, non-disparagement provisions, and other terms that protect your company.
- No admission of liability -- Mediated settlements include standard non-admission clauses. Settling does not mean you admit wrongdoing.
How to Prepare for EEOC Mediation
- Conduct a preliminary internal investigation to understand the facts before mediation
- Evaluate the strength of the charge objectively -- what is the risk if this goes to trial?
- Calculate your defense costs: attorney fees, management time, document production costs, potential discovery costs
- Determine your settlement authority in advance -- what are you willing to pay to resolve this?
- Bring a decision-maker to the mediation, someone with actual authority to agree to a settlement
- Prepare a brief summary of your position, but do not bring your full position statement to mediation
Settlement Agreement Provisions Employers Should Insist On
- Full release of all claims -- The settlement should release not just the EEOC charge but all known and unknown employment claims through the date of settlement
- Non-admission of liability -- Standard language stating that the settlement is a compromise and does not constitute an admission of wrongdoing
- Confidentiality clause -- Prohibiting the charging party from disclosing the terms of the settlement to anyone other than their attorney, tax advisor, or spouse
- Non-disparagement -- Mutual non-disparagement provisions preventing both sides from making negative statements about the other
- Agreed-upon reference -- A neutral reference letter or agreed-upon language for future employment verifications
- Return of company property -- If the employee still has company property, laptops, badges, documents
- No rehire clause -- If appropriate, an agreement that the charging party will not seek future employment with the company
After you submit your position statement, the EEOC may conduct a more detailed investigation. Here is what to expect and how to cooperate effectively while protecting your rights.
The EEOC has the authority to request documents and information from your company during the investigation. These requests are formally called Requests for Information (RFI). You are legally required to comply, but you also have rights.
Common Document Requests
- Personnel files -- The charging party's complete personnel file, including applications, offer letters, performance reviews, disciplinary records, and separation documents
- Policies and procedures -- Anti-discrimination policies, harassment policies, complaint procedures, employee handbooks
- Comparator information -- Personnel records of similarly situated employees who were treated differently
- Organizational charts -- Chain of command showing reporting relationships
- Payroll records -- Compensation data for the charging party and comparators (especially in pay discrimination claims)
- Internal communications -- Emails, memos, and other communications related to the employment decision at issue
- Training records -- Documentation of anti-discrimination training provided to managers and employees
On-Site Visits
In some cases, the EEOC investigator may request an on-site visit to your workplace. This typically occurs in cases involving allegations of a hostile work environment, physical workplace conditions, or when the investigator wants to observe the workplace firsthand. During an on-site visit:
- Cooperate professionally and provide access to areas the investigator requests to see
- Designate a company representative (ideally your attorney) to accompany the investigator
- Do not coach employees or instruct them not to speak with the investigator
- Do not remove or alter documents, postings, or conditions before the visit
Witness Interviews
The EEOC investigator may request to interview current employees as witnesses. Key points:
- You cannot instruct employees not to speak with the EEOC
- Employees may choose to have their own attorney present (at their own expense)
- You should not be present during employee interviews with the EEOC
- You may interview employees yourself as part of your internal investigation, but do not coach them on what to say to the EEOC
Your Rights During Investigation
- You have the right to object to overly broad or unduly burdensome document requests
- You can assert attorney-client privilege and work product protection for privileged documents
- You can request clarification of vague requests
- You can request a reasonable extension of time to respond to document requests
- If the EEOC issues a subpoena you believe is improper, you can challenge it in federal court
While you have the right to assert legitimate objections, refusing to cooperate with the EEOC investigation can result in a subpoena, adverse inferences, and a finding against you based solely on the charging party's version of events. Courts have consistently held that employers who refuse to cooperate with EEOC investigations face negative consequences. Cooperate professionally while protecting your legitimate rights.
Understanding the possible outcomes helps you calibrate your response strategy and settlement posture throughout the process.
| Outcome | Frequency | What It Means | Employer Action |
|---|---|---|---|
| Dismissal / No Cause | ~80% | EEOC finds insufficient evidence to support the charge. The charging party receives a right-to-sue letter. | Maintain records. The employee can still file a lawsuit within 90 days of receiving the right-to-sue letter. |
| Cause Finding | ~5% | EEOC finds reasonable cause to believe discrimination occurred. Triggers mandatory conciliation process. | Participate in conciliation in good faith. Consider settlement seriously -- a cause finding strengthens the employee's litigation position. |
| Settled / Withdrawn with Benefits | ~15% | Charge resolved through mediation, conciliation, or private settlement before a determination is issued. | Finalize settlement agreement with appropriate provisions (release, confidentiality, non-admission). |
Dismissal / No Cause Finding
This is the most common outcome and is generally favorable for the employer. However, a no-cause finding does not prevent the charging party from filing a private lawsuit. The employee receives a "right-to-sue" letter and has 90 days to file suit in federal court. Some employees do file suit after a no-cause finding, particularly if they have retained an attorney who believes the case has merit. Maintain your litigation hold until the 90-day period has expired.
Cause Finding
A cause finding means the EEOC believes, based on the evidence reviewed, that discrimination likely occurred. This is a serious development. When the EEOC issues a cause finding, it must attempt conciliation -- a mandatory settlement negotiation -- before it can file suit. If conciliation fails, the EEOC can either file suit against you in federal court (which it does in a small percentage of cases) or issue a right-to-sue letter to the charging party.
Conciliation
Conciliation is the EEOC's formal attempt to resolve the charge after a cause finding. Unlike mediation, the EEOC takes the employee's side during conciliation and presents settlement demands. Common conciliation demands include:
- Monetary compensation (back pay, compensatory damages, emotional distress)
- Policy changes within your organization
- Anti-discrimination training for managers and employees
- Reporting requirements to the EEOC for a specified period
- Reinstatement (in wrongful termination cases)
You should take conciliation demands seriously and negotiate in good faith. However, you are not required to accept the EEOC's terms. If conciliation fails, the EEOC decides whether to litigate or issue a right-to-sue letter.
Right-to-Sue Letter
A right-to-sue letter authorizes the charging party to file a lawsuit in federal court. The employee has 90 days from receipt of the letter to file suit. If 90 days pass without a lawsuit being filed, the claim is generally time-barred. A right-to-sue letter can be issued after a no-cause finding, after conciliation fails following a cause finding, or at the charging party's request at any time during the process (after 180 days from filing).
A dismissal with a no-cause finding followed by no lawsuit within 90 days is the best outcome. A well-drafted position statement supported by thorough documentation significantly increases the likelihood of this result. This is why the position statement is worth investing in -- it is the single most impactful document in the process.
Whether to settle an EEOC charge is a business decision, not a moral one. Smart employers evaluate settlement based on costs, risks, and business impact.
Cost-Benefit Analysis
Before deciding whether to settle, calculate the total cost of defense versus settlement:
| Cost Category | EEOC Stage | Litigation Stage |
|---|---|---|
| Attorney Fees | $5,000 - $25,000 | $75,000 - $250,000+ |
| Management Time | 40-80 hours | 200-500+ hours |
| Document Production | $1,000 - $5,000 | $10,000 - $100,000+ |
| Expert Witnesses | Rarely needed | $15,000 - $50,000+ |
| Potential Liability | N/A | $50,000 - $500,000+ (jury verdict) |
Insurance Coverage (EPLI)
If you have EPLI coverage, your carrier may cover defense costs and settlements. Key considerations:
- Review your policy for the deductible/retention amount -- you pay this before coverage kicks in
- Some EPLI policies require the carrier to approve settlement amounts
- Your carrier may have panel counsel requirements -- attorneys you must use to preserve coverage
- Report the claim promptly; late reporting can void coverage
Settlement Structure
- Lump sum vs. installments -- Most EEOC settlements are paid as a lump sum. Installments are sometimes used for larger amounts but create ongoing obligations and risk of default claims.
- Tax allocation -- How the settlement is allocated between wages (subject to payroll taxes) and emotional distress/compensatory damages (not subject to payroll taxes but potentially subject to income taxes) matters for both parties. Consult a tax advisor.
- Non-admission clause -- Every settlement should include explicit language that the payment does not constitute an admission of wrongdoing, discrimination, or liability.
- Confidentiality provisions -- Limit disclosure of settlement terms to attorneys, tax advisors, and spouses. Include liquidated damages for breach of confidentiality.
- Reference letter provisions -- Agree on neutral reference language and designate a specific person to handle future employment verification inquiries.
- Full release -- The settlement agreement should include a comprehensive release of all claims, known and unknown, through the date of the agreement.
- No-rehire provision -- Include a provision that the charging party agrees not to apply for or accept employment with the company in the future.
The best EEOC charge is one that never gets filed. Implementing proactive measures significantly reduces your exposure to discrimination claims.
Anti-Discrimination Policies
- Maintain a comprehensive anti-discrimination and anti-harassment policy that covers all protected classes under federal, state, and local law
- The policy should include clear definitions of prohibited conduct with examples
- Include a strong anti-retaliation provision
- Distribute the policy to all employees and obtain signed acknowledgments
- Review and update the policy annually to reflect changes in the law
Training Programs
- Manager training -- All managers and supervisors should receive annual anti-discrimination training covering hiring, performance management, discipline, termination, harassment prevention, and reasonable accommodation
- Employee training -- All employees should receive annual training on the company's anti-discrimination policy, reporting mechanisms, and anti-retaliation protections
- Document all training -- Maintain records of training dates, attendees, content covered, and trainer credentials. These records are valuable evidence in defending EEOC charges.
Reporting Mechanisms
- Provide multiple channels for employees to report discrimination or harassment (direct supervisor, HR, anonymous hotline, online portal)
- Ensure employees can report to someone other than their direct supervisor
- Communicate the reporting mechanisms regularly and prominently
- Track all reports and ensure each one receives a response within a defined timeframe
Prompt Investigation Procedures
- Investigate every complaint of discrimination or harassment, even informal complaints
- Begin investigations within 48 hours of receiving a complaint
- Complete investigations within 30 days whenever possible
- Document findings and corrective actions taken
- Follow up with the complainant to ensure retaliation has not occurred
Documentation Practices
- Document performance issues in real time -- The most common employer mistake is failing to document performance problems before they lead to termination. If you cannot produce written evidence of the performance issues that led to termination, the EEOC investigator may conclude the stated reason was pretextual.
- Use consistent evaluation forms and criteria across all employees
- Ensure disciplinary actions are progressive and consistently applied
- Keep detailed notes of any workplace incidents, complaints, or counseling sessions
Regular Policy Reviews
- Review all employment policies annually with employment counsel
- Update policies when laws change (new protected classes, new accommodation requirements)
- Audit hiring, promotion, and termination data for patterns that could suggest disparate impact
- Conduct periodic pay equity analyses to identify and correct wage disparities
Companies that consistently implement these preventive measures are far better positioned to defend EEOC charges. A well-documented history of anti-discrimination training, prompt investigation of complaints, and consistent application of disciplinary policies creates a strong affirmative defense and demonstrates good faith to EEOC investigators.
Employment Practices Liability Insurance is a specialized insurance product that covers employers against claims by employees alleging discrimination, harassment, wrongful termination, and other employment-related issues.
What EPLI Typically Covers
- Defense costs -- Attorney fees for defending EEOC charges and subsequent litigation
- Settlement amounts -- Negotiated settlement payments to resolve charges and lawsuits
- Judgments -- Court-ordered damages if the case goes to trial (subject to policy limits)
- Covered claim types -- Discrimination, harassment, wrongful termination, retaliation, failure to promote, wage and hour claims (in some policies)
What EPLI Typically Does NOT Cover
- Punitive damages (in most states)
- Criminal fines or penalties
- Claims arising from intentional or criminal conduct
- Claims that were known before the policy inception date
- Workers' compensation claims
- NLRA/union-related claims (in most policies)
Notification Requirements
Most EPLI policies require prompt notification of any potential claim. Key points:
- Notify immediately upon receiving the EEOC charge -- Do not wait until the investigation is underway or litigation is filed. Late notification is one of the most common reasons for coverage denial.
- Report "potential claims" proactively -- Some policies require you to report internal complaints or threatened claims, even before an EEOC charge is filed
- Follow the policy's notice provisions exactly -- Send written notice to the specific address or email identified in the policy, within the specified timeframe
Coordination with Carrier During EEOC Process
- Panel counsel -- Many EPLI carriers require you to use attorneys from their approved panel. Using your own attorney without carrier approval may void coverage.
- Settlement approval -- Your carrier may need to approve settlements above a certain threshold. Always check before agreeing to any settlement amount.
- Cooperation clause -- EPLI policies contain cooperation clauses requiring you to assist in the defense. Failure to cooperate can void coverage.
- Reservation of rights -- Your carrier may issue a "reservation of rights" letter stating that it is investigating coverage while providing a defense. This does not mean you are not covered, but it means the carrier has identified potential coverage issues.
Coverage Limits and Deductibles
- Per-claim deductible/retention -- Typically $2,500 to $25,000 for small to mid-size employers. You pay this amount out of pocket before coverage applies.
- Per-claim limit -- The maximum the carrier will pay for any single claim (defense costs + settlement/judgment). Common limits are $500,000 to $5,000,000.
- Aggregate limit -- The maximum the carrier will pay for all claims during the policy period. Often 2x the per-claim limit.
- Defense within limits vs. defense outside limits -- Some policies count defense costs against the per-claim limit (defense within limits), which reduces the amount available for settlement or judgment. Policies with defense outside limits provide separate coverage for defense costs.
If you do not currently carry EPLI, consider purchasing it before you receive a charge. EPLI is relatively affordable for small to mid-size employers (typically $1,500-$10,000/year depending on company size and claims history) and can save you hundreds of thousands in defense costs and settlements. If you already have EPLI, review your policy annually to ensure your coverage limits are adequate and understand your notification obligations.
- Review of draft position statement
- Legal sufficiency analysis
- Fact-checking and consistency review
- Strategic recommendations
- One round of revisions
- Attachment review
- Charge analysis and strategy call
- Litigation hold guidance
- Internal investigation framework
- Position statement drafting
- Supporting document review
- EPLI carrier notification assistance
- Mediation evaluation
- Two rounds of revisions
- Submission through EEOC portal
- Pre-mediation strategy session
- Risk assessment and valuation
- Mediation preparation memo
- Full-day mediation attendance
- Settlement negotiation
- Settlement agreement drafting
- Release and waiver preparation
- Post-mediation follow-up
You typically have 30 days from receipt of the EEOC charge to submit your position statement. This deadline is established in the transmittal letter that accompanies the charge. Extensions are possible if you contact the assigned EEOC investigator before the deadline and provide a reasonable justification, such as needing time to gather documents or consult with counsel. Most investigators will grant a 15-30 day extension upon request. Missing the deadline without requesting an extension can result in the EEOC making a determination based solely on the charging party's allegations.
No. An EEOC charge is not a lawsuit. It is an administrative complaint filed with a federal agency. The EEOC will investigate the charge and issue a determination. Only if the EEOC issues a right-to-sue letter (which happens in the vast majority of cases, regardless of the finding) can the charging party file a lawsuit in federal court. Even then, the employee has only 90 days from receipt of the right-to-sue letter to file suit. Many employees never file a lawsuit after receiving a right-to-sue letter. However, you should treat the charge seriously because it could lead to litigation and because your response will form the foundation of your defense if suit is filed.
In most cases, employers should seriously consider accepting EEOC mediation. It is free (the EEOC provides the mediator at no cost), confidential (nothing said during mediation can be used as evidence later), and typically much faster and cheaper than defending a full investigation or lawsuit. Mediation does not require you to admit wrongdoing, and you can walk away without an agreement if the terms are unacceptable. The main reasons to decline mediation are if you have overwhelming evidence the charge is baseless and want a formal no-cause finding, if the charging party has unrealistic demands that make settlement impossible, or if accepting mediation would set a precedent you want to avoid. Even so, mediation has a resolution rate of approximately 70% and eliminates the uncertainty and cost of continued proceedings.
Yes, under current EEOC procedures. The EEOC implemented position statement disclosure procedures that require the agency to share the employer's position statement with the charging party. The charging party then has 20 days to respond. However, you can designate certain attachments as "confidential" and request that they not be shared. Confidential attachments may include sensitive business information, medical records, Social Security numbers, and other private data. The position statement itself will be shared, so write it with the understanding that the employee and their attorney will read every word. Be factual, professional, and avoid personal attacks.
Technically, you can terminate an employee for legitimate, non-retaliatory reasons even after they file an EEOC charge. However, as a practical matter, terminating an employee who has filed an EEOC charge is extremely risky and will almost certainly result in a retaliation claim being added to the original charge. Retaliation claims are the most frequently filed charge type with the EEOC and are often easier for employees to prove than the underlying discrimination claim. If you must take adverse action against an employee who has filed a charge, you need clear, documented evidence that the decision was made for legitimate business reasons entirely unrelated to the charge, and ideally that the decision was in process before you received the charge. Consult with employment counsel before taking any adverse action.
If the EEOC issues a "cause" finding, it means the agency believes there is reasonable cause to find that discrimination occurred. The EEOC will then attempt conciliation -- a mandatory settlement negotiation process. During conciliation, the EEOC will present demands on behalf of the charging party, which may include monetary compensation, policy changes, training requirements, and ongoing reporting obligations. If conciliation fails, the EEOC can either file suit against you in federal court (this happens in a small percentage of cases, typically high-profile or systemic discrimination cases) or issue a right-to-sue letter to the charging party. A cause finding significantly strengthens the employee's litigation position and makes settlement more advisable.
Defending an EEOC charge at the administrative level (position statement and investigation) typically costs $5,000 to $25,000 in attorney fees, depending on the complexity of the charge and the volume of documents involved. If the charge proceeds to federal litigation, defense costs typically range from $75,000 to $250,000 or more through trial. These costs include attorney fees, document production, depositions, expert witnesses, and trial preparation. If you carry EPLI (Employment Practices Liability Insurance), your carrier may cover defense costs and any settlement or judgment, subject to your deductible. Mediation through the EEOC is free (the EEOC provides the mediator) and can resolve the matter for a fraction of litigation costs.
Yes, in almost all cases. While employers are not required to have attorney representation during the EEOC process, it is strongly advisable. Your position statement is the most important document in the process and will be shared with the charging party -- it should be reviewed by employment counsel at minimum. An experienced employment attorney can also help you conduct a proper internal investigation, evaluate whether mediation makes sense, navigate document preservation obligations, protect attorney-client privilege, and avoid common pitfalls like inadvertent admissions. If you carry EPLI, your carrier will typically provide or pay for an attorney. The cost of attorney representation at the EEOC stage is a fraction of what litigation costs if the charge is mishandled and results in a lawsuit.
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