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The EEOC's New Rule is a Reminder that What is Said in Position Statements Really Does Matter

The EEOC has just implemented nationwide procedures to provide for the release of an employer’s position statement and any a non-confidential attachments to the charging party or the charging party’s attorney upon request during the investigation of the charge of a discrimination. This nationwide rule further emphasizes why it is so important to be careful in written responses to EEOC charges. Getting the facts wrong in a position statement to an EEOC charge can turn a defensible claim into a problematic one. Misstating the reasons for why an adverse action was taken against the charging party can be the difference between a successful summary judgment motion and the loss of the case before a jury at trial.

The entire EEOC process can be one that will lure an employer into a false sense of security. Most EEOC charges do not result in significant investigations by the EEOC. Even fewer of these charges ever lead to an actual lawsuit. Therefore, the temptation is to take the process lightly and not devote the time necessary to presenting the employer’s case when asked to do so by the EEOC. While what the employer says in the position statement may not have significant impact on how the charge is handled before the EEOC, if the charge at issue is one of those rare ones that does end up in court, that position statement can determinative. Courts have held that once an employer has stated the reasons for termination in its position statement, it cannot later claim other reasons for those actions when defending itself in federal court. Changing the employer’s statement as to why it took certain actions against the charging party, now turned plaintiff, can lead to a finding that the employer’s position is not credible. Of course, if any of the statements in the position statement are proven to be false, not only can that have a significant impact on a case filed based upon the charge, but everyone needs to recall that making a false statement to the federal government could be perjury.

Position statements before the EEOC have always been, and should continue to be, considered serious matters worth the effort to make sure they are correct. With the announcement of its national rule to allow the charging party to obtain position statements while the charge is still pending, the EEOC has provided a good reminder of just how serious drafting the position statement can be.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.