The Equal Employment Opportunity Commission (EEOC)’s enforcement priorities have changed, and it seems, so have corresponding timelines to respond to employee charge allegations.
Employers responding to charges of discrimination filed with the EEOC are encountering shorter deadlines for submitting position statements. This development makes prompt coordination with counsel and timely collection of evidence more important than ever.
Shorter Response Deadlines and Limited Extensions
Although the EEOC’s published guidance continues to provide for a general 30-day response period, practitioners report that some EEOC offices are now requiring position statements within 15 days and are granting fewer or shorter extensions. Practices vary among EEOC offices. These shorter deadlines can be particularly challenging in cases involving multiple employees, decision-makers, or work locations.
Employers should promptly review each EEOC charge notice, confirm the applicable response deadline, and calendar that deadline. Although missing a deadline does not automatically result in an adverse determination, the EEOC may proceed based on the available evidence.
Practical Steps for Employers
Given these developments and the new expedited processing times, some practical tips for employers and their representatives include:
- Reviewing procedures for receiving EEOC charges, monitoring the EEOC Respondent Portal, and calendaring response deadlines.
- Designating an HR representative responsible for promptly notifying appropriate personnel and legal counsel upon receipt of an EEOC charge.
- Establishing procedures to promptly preserve and collect relevant documents and identify individuals with knowledge of the allegations.
Preparing an Accurate and Timely Response
Because position statements are generally made available to charging parties and may later be used in litigation, accuracy is vital. If it becomes apparent that the employer will not be able to meet an EEOC deadline, consider producing a partial response, preserving all applicable defenses, and requesting a short extension of time from the assigned EEOC Investigator to provide a complete response. Request an extension as early as possible, identify the additional time needed, and explain why it is necessary to prepare a complete and accurate response. For example, additional time may be needed to collect records from multiple locations or interview relevant witnesses. Although the EEOC may consider these efforts as evidence of diligence, employers should not assume that an extension or supplemental submission will be permitted. Confirm any extension and revised deadline in writing.
Employers should also consider the EEOC’s voluntary mediation program. When both parties agree to EEOC mediation, the employer generally is not required to submit a position statement while mediation is pending. If mediation is unsuccessful, the EEOC will ordinarily establish a deadline for the employer's response. Employers should confirm the suspension with the EEOC and determine the applicable deadline if mediation is unsuccessful. Participation in mediation does not constitute an admission of wrongdoing and may provide an opportunity for early resolution.
Effective documentation and recordkeeping practices can substantially reduce the time and expense of responding to an EEOC charge. Employers should periodically review their procedures to ensure that relevant records can be promptly identified, preserved, and collected when needed.
Elizabeth A. Ledkovsky, Staff Attorney with Epstein Becker Green, contributed to this post.
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The Workforce Bulletin blog is currently edited by Scott J. Connolly, Adam S. Forman, Greta Ravitsky, Elizabeth S. Torkelsen, and Jennifer Stefanick Barna.
