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Drafting Effective EEOC Position Statements

By Alexander T. MacDonald

 

If you practice employment law long enough, you’ll have to write a position statement to the EEOC. At first glance, these statements seem uncomplicated; there are few official guidelines, and the process is rather informal. But don’t let that apparent informality lull you to sleep: position statements involve many strategic choices, and there are plenty of traps for the unwary. This article will help you navigate the traps and weigh the choices.

 

Let’s start with what a position statement is: Before a person can file a lawsuit for employment discrimination, she generally has to file a complaint (or “charge”) with an administrative agency, often the EEOC. The EEOC will then usually contact the person’s employer and ask for a response. This response is called a position statement.

 

The most effective position statements are those that tell a story. Before the employer files its statement, the agency investigator knows next-to-nothing about the employer. She knows only the disgruntled employee (or former employee) has said in the charge, which is unlikely to be flattering. The position statement is your chance to make a first impression, and first impressions matter.

 

Start by introducing your client. You should work in as many positive details as possible. For example, if you’re representing a small business, tell the investigator about how proud your client is of creating local jobs. If you’re representing a large company, talk about how your client serves underprivileged communities, how it promotes civic involvement, or how it sponsors charitable events. Whatever you have, use it.

 

You’ll also need to reintroduce the charging party. This part is delicate. You have to explain why something bad happened to this person: why she was passed over for a job, why she was demoted, why she was fired. That means you’ll have to say something less than positive about her. But while some negativity is unavoidable, there’s a right way to deliver it. Don’t start calling names or flinging ad hominem attacks; that won’t do you or your client any favors. Instead, just stick to the facts. Did the charging party have performance issues? Walk through them step by step. Explain as specifically as you can what she did wrong, how many chances she had, and how she blew it. And while you’re at it, avoid charged or slanted language. Adjectives and adverbs are not your friend. The tone you’re looking for is more sorrowful than angry. “We all wish she’d been able to do the job, but she just couldn’t.”

 

While you’re telling the story, you’ll be tempted to start arguing about the law. You’ll want to start citing statutes and cases. Phrases like “prima facie” and “burden shifting” will start bubbling up in your brain and leaking out onto the page. Resist them. Citations and legal jargon don’t belong in a position statement; they belong in a brief. Remember, in the statement, you’re just telling a story.

 

You’ll also be tempted to ignore some allegations in the charge—particularly the ones that seem petty or inconsequential. Don’t do it. You have to answer every allegation. If you don’t, the investigator may take them as conceded. And you don’t want to start making concessions this early in the process. They may seem minor now, but down the road, they can come back to bite you.

 

Unfortunately, charges aren’t famous for their pellucidity; they’re often written in stream-of-consciousness style by people with no legal training. So you should parse out all the allegations yourself and make your own list. Then, as you’re writing, tick them off. And when you’re done, check the list again. If that sounds tedious, it’s because it is. But it’s also the easiest and most effective way to avoid an unforced error.

 

You’ll also want to include some detail beyond the four corners of the charge. The Commission lists on its website the items it expects to see in a position statement. These include the names of the decision makers, the relevant dates, and copies of the relevant policies. Check that list off, too. If you don’t give the investigator everything she wants, she’ll just follow up with a second (or third, or fourth) information request. The last thing you want is to go around in circles: that will irritate the investigator and your client. So just be as complete as possible the first time around.

 

A word of caution: In some cases, you’ll want to provide less information than you ordinarily would. Since 2016, the Commission’s policy has been to give the charging party a copy of the position statement. And often, that charging party is still employed with the company. In a case like that, you have to be careful about information that pertains to coworkers or that could affect workplace relationships. Once the charging party knows something, the whole office will know it. The best way to avoid these pitfalls is to talk with your client about what might cause consternation in the workplace.

 

You also have to be careful about opening the door to other issues. While you may be focused on the charge at hand, the investigator may be focused on bigger fish. The Commission trains its investigators to look out for “systemic” or “pattern or practice” discrimination. Your investigator will almost certainly scrutinize anything you disclose for evidence of a broader policy issue. Keep that in mind as you’re framing your story and do what you can to keep the investigation narrow.

 

If this seems like a lot to think about while you’re writing the statement, don’t fret. All you need to do is think strategically. Understand that you’re just telling a story, and that story should lead the investigator to the right conclusion. Avoiding the pitfalls is just a matter of thinking about what you need to say and framing the facts appropriately. Everything else will take care of itself.

 

Alexander MacDonald is a 2012 graduate of the William & Mary Marshall-Wythe School of Law. He is now an associate attorney at Constangy, Brooks, Smith & Prophete, LLP, and the editor in chief of the Practice Tips Series. He can be reached at amac2644@gmail.com.