Bad EEOC position statements can come back to haunt you. Just ask this employer.


There will come a time in your HR or employment law career when you must respond to a Charge of Discrimination filed with the United States Equal Employment Opportunity Commission by filing a position statement.

The EEOC has a great resource on effective position statements and stresses that the position statement should clearly explain the employer’s version of the facts. But here’s a bonus tip. Stick with whatever legitimate business decision the Charging Party mistook for an act of discrimination.

You’ll see what I mean in a second.

I read this federal court opinion last night in which an individual filed a charge of age discrimination based on a failure to hire him.

In its response to the EEOC, the employer denied that age was a factor. It stated that the charging party “lacked the required educational requirements for the position” and that another individual was “significantly” more qualified. According to the statement, the charging party “had chosen not to submit a complete application. Additionally, the Search Committee determined that other candidates were better qualified [than him].”

The position statement primarily focused on the charging party’s alleged lack of educational qualifications and relevant work experience. For example, the employer stated that the charging party “was not qualified for the Position because the Position requires a Master’s degree in Biology or related field.” But that wasn’t true. In the eventual lawsuit, the employer admitted that the individual’s doctorate in dentistry met the educational requirement for the position.

The position statement also asserted that the charging party’s “teaching experience is limited to working as an adjunct.” Again, this is not true, as the charging party taught several biology classes, performing the same job for which he was applying.

By presenting an inconsistent rationale for failing to interview or hire the charging party, the court had little trouble concluding that a jury might find these shifting explanations were a pretext for age discrimination.

Folks, shifting justifications over time calls the credibility of those justifications into question and demonstrate circumstantial evidence of discrimination. An effective position statement is clear, concise, complete, and responsive.

But above all, take a position. And stick with it.

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