Bad Position Statements Can Sink an Employers' Defense

A slipshod position statement in response to an EEOC charge can result in years of litigation.

By Ron Chapman Jr. and Vicki Tall Dec 8, 2017
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​Before an employee can sue an organization for violating anti-discrimination laws, he or she must file a charge with the Equal Employment Opportunity Commission (EEOC) or a similar state agency. The EEOC or state agency then notifies the employer of the charge and, in most cases, requests a formal, written response called a “position statement.” 

Many company leaders fail to realize just how important this statement is. Unless employers formulate a thorough, clear and consistent position, they may not be able to defend themselves successfully down the road. 

Not only is a position statement an opportunity to explain why the complainant’s allegations are false, it also serves as the first impression the employer will make with the EEOC—which can have lasting effects. 

​If the charge evolves into a lawsuit, the position statement and any supporting documentation can be admitted as evidence. Any inconsistencies between the reasons given over time for the employment decision at issue will damage the company’s credibility.

Beware of Inconsistencies

​It’s essential to make sure any reasons given for an employment action are well-documented, agreed upon by all decision-makers and carefully articulated. Any deviation from that stated rationale can be very costly in subsequent litigation. 

Inconsistencies don’t have to be glaring to cause serious problems for an employer. For example, in Smith v. Shenandoah Valley Juvenile Det. Home Comm’n, conflicting details got the employer into trouble. In that case, managers at Shenandoah Valley, a juvenile detention home, fired an employee for allegedly falsifying a sick leave report. The employee, who is white, filed a charge with the EEOC alleging that her company retaliated against her because she had complained about discrimination in a letter written just two and a half months before she was terminated. 

In its position statement, representatives for the organization stated that they first learned that the employee was submitting false leave requests on July 11, 2002, when a shift supervisor saw her car parked outside the location of her part-time job within hours after she had taken sick leave at Shenandoah Valley. They further noted that the manager reported his sighting to the facility’s assistant superintendent the next morning. The assistant superintendent subsequently shared the information with the superintendent, who then called the supervisor at the employee’s part-time job and confirmed that she had worked the previous day. He also learned that she had worked at her part-time job on 18 of the previous 20 sick days she had requested from Shenandoah Valley.

​After the employee filed suit, Shenandoah Valley filed for summary judgment. In her response to that motion, the employee pointed out that records from her part-time job showed she did not work on July 11 as Shenandoah Valley claimed in its position statement. Further, deposition testimony from Shenandoah Valley management officials conflicted with the position statement submitted long before the emplyee had filed the lawsuit. 

The court concluded that the inconsistencies in the record raised a genuine issue of material fact as to whether the company’s reason for termination was a pretext for retaliation. Accordingly, the court denied Shenandoah Valley’s request for summary judgment, permitting the claim to proceed to trial.

[SHRM members-only toolkit: Avoiding Adverse Impact in Employment Practices]

Precautionary Steps

​Take the following precautions to minimize your risk of creating a problematic position statement: 

  • Make sure all decision-makers are on the same page about the reasons and underlying justifications for a possible employment decision before it is made. 
  • Be thorough from the start. If there are multiple explanations for an employee’s termination, clearly articulate each one at the time of the employment action, when responding to the EEOC and in any subsequent litigation. 
  • ​Take time to investigate the allegations and draft the position statement carefully. Interview all decision-makers and make them aware that they may have to testify later under oath about what they told you. 
  • Compare all factual representations made in the position statement to all documentation. Even slight variations can have devastating consequences.
  • Ask all decision-makers to review the position statement before submitting it to the EEOC. Again, remind them that they may be called to testify as to its factual accuracy. Better to discover any inconsistencies at this stage rather than during litigation.  
  • While this process can be lengthy, it’s not nearly as time-consuming—or costly—as the legal exposure you may face if you don’t put in the effort upfront.  
Ron Chapman Jr. is a shareholder with Ogletree Deakins in Dallas and a member of the firm’s board of directors. Vicki Tall is senior attorney, labor and employment, with Raytheon in Richardson, Texas.

Illustration by Dale Glasgow for HR Magazine.

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