Tick, Tock: EEOC is Quietly Cutting Employers’ Clock to Respond to EEOC Charges

Employers, your time to respond to an EEOC Charge of Discrimination may now be as short as 15-days, not the typical 30-day window.

What is Happening?

Historically, employers could expect an initial 30-days to submit a “position statement” after receiving a Charge of Discrimination from the Equal Employment Opportunity Commission (“EEOC”).

Our employment attorneys have noticed a trend in which the EEOC has quietly cut the traditional 30 day deadline to as little as 15 days.

The EEOC has not issued any formal guidance about this significant change.  As of the date of this bulletin, the EEOC’s public guidance still advises employers that the deadline to submit a position statement is generally 30 days. (Questions and Answers for Respondents on EEOC’s Position Statement Procedures, EEOC.) A spokesperson for the EEOC has, however, acknowledged that response deadlines can vary from one EEOC office to another.

Why does this matter for employers?

A position statement is an employer’s first opportunity to present its facts, defenses, and supporting evidence in response to an EEOC charge.

According to current EEOC guidance, an “effective position statement” should be clear, concise, complete, and responsive. It should also address each allegation, identify supporting documents and evidence, and raise any applicable defenses. The EEOC also advised that “a well drafted position statement can help [the] EEOC accelerate the investigation and limit requests for additional information.” (Effective Position Statements.)

Even with a typical 30-days to respond, many employers faced challenges with submitting effective position statements, due to inability to interview witnesses, locating policies, reviewing documents, and looping in legal counsel in a timely manner.

However, with a shorter deadline of 15-days to respond, employers are now left with far less time to investigate, gather supporting documents, and prepare an “effective position statement.” This shorter deadline places employers in a bind: submit an incomplete position statement or risk missing the deadline entirely. Both have serious legal consequences, including the risk that an EEOC investigator issues a determination without the employer’s side of the story.

Takeaway

Although no formal guidance or announcement has been made about this significant change,  employers should not assume they have the usual 30-days to respond to an EEOC charge. Historically, it was not uncommon for employers forward an EEOC charge to legal counsel several days after receiving notice. However, with a shortened timeframe, it is more critical now than ever for employers to act promptly.

Best Practices to Beat the Clock

Given this significant reduction in an employer’s time to respond to an EEOC charge, some best practices for employers include:

1. Check the deadline on the EEOC “Notice of Charge of Discrimination”. Employers should not anticipate the usual 30-day timeframe to submit a position statement. Instead, employers should refer to the date specified on the EEOC’s notice, and calendar all deadlines immediately.
2. Designate Employer’s Representative. Employers should identify a “point person” responsible for processing EEOC charges in a timely manner, calendaring deadlines, gathering documentation, and notifying appropriate personnel and legal counsel.
3. Contact our labor and employment counsel right away. It is now more important than ever to contact employment counsel upon receipt of an EEOC charge.  Early involvement gives us the most time to evaluate the merits of the charge, identify the applicable deadlines, and determine whether an extension is needed. It also gives us the most time to review all documents, interview witnesses, and draft an effective position statement. Stated simply, the sooner we are involved, the more we can do.
4. Request an Extension of Time Promptly. Although extensions tend to be available, a request does not automatically extend the deadline. The EEOC grants requests for extensions only on a showing of good cause. We can handle these requests with the assigned EEOC investigator on your behalf.
5. Improve Recordkeeping Practices. A shorter deadline means less time to locate policies and procedures, personnel files, and other relevant documentation.  Review your current recordkeeping practices to ensure relevant documents are easy to retrieve when a charge comes in.
6. Preserve documents and avoid retaliation. Regardless of any shortened timeframe, employers must still retain relevant records and ensure no one is retaliated against f or filing a charge or participating in an EEOC investigation.

For further guidance on employer obligations upon receiving an EEOC Charge of Discrimination, contact our firm’s Labor & Employment Practice Group.