Summary. A charge of discrimination begins a process more consequential than most employers appreciate, because the position statement written in the first month becomes the employer's story for the rest of the case. This guide covers the jurisdictional and timeliness questions to evaluate before writing anything, the immediate steps including the litigation hold and the anti-retaliation instruction, and the investigation that must precede the statement. It then addresses the position statement in detail — what to include, what to withhold, and the disclosure rules — followed by requests for information, on-site visits and interviews, mediation and conciliation, the determinations, and the right to sue letter.

A 140-employee manufacturer receives a notice of charge alleging race discrimination and retaliation. The charging party is a former production supervisor terminated four months earlier for falsifying a quality report.

The HR manager, who has never seen one of these, does three things over the next two weeks.

She calls the former supervisor's old manager and asks him to write up what happened, and he produces a memorandum that is candid, angry, and mentions that the supervisor had "always been difficult" and had "complained about everything."

She submits a two-page position statement asserting that the termination was for falsification, attaching nothing.

And she does not tell anyone about the litigation hold obligation, so the plant's video retention system overwrites the footage from the day of the incident on its normal 30-day cycle.

Every one of those is a problem. The memorandum is a discoverable document characterizing the charging party's protected complaints as a personality defect. The position statement asserts a reason without supporting it, which the agency will read as unsupported, and which locks the employer into a narrative before anyone has investigated. And the video that would have proven the falsification is gone, which will be characterized as spoliation.

The termination may well have been entirely lawful. The response has made that much harder to establish.

What a charge is, and what it starts

A charge of discrimination is a sworn statement filed with the EEOC or a state or local fair employment practices agency (FEPA) alleging an unlawful employment practice. It is a prerequisite to suit under Title VII, the ADA, the ADEA, and GINA — an employee generally cannot sue without first filing and receiving a right to sue notice.

What it is not. It is not a lawsuit, it is not a finding, and it is not evidence of anything. Charges are filed at a rate that vastly exceeds the number that result in a cause determination, and the majority are dismissed.

Statutes administered by the EEOC:

  • Title VII — race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), and national origin. Employers with 15 or more employees.
  • The ADA — disability. 15 or more employees.
  • The ADEA — age 40 and over. 20 or more employees.
  • The Equal Pay Act — sex-based wage discrimination. Nearly all employers, and notably no charge is required before suing.
  • GINA — genetic information. 15 or more employees.
  • The Pregnant Workers Fairness Act — accommodation of pregnancy-related limitations. 15 or more employees.

Counting employees: 15 or 20 or more for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Part-time employees count. The integrated enterprise and joint employer doctrines can aggregate related entities and staffing arrangements to reach the threshold.

Timeliness. The charge must be filed within 180 days of the discriminatory act — extended to 300 days in a deferral state with a FEPA covering the practice, which is most states. The clock runs from each discrete act — a termination, a failure to promote, a demotion — under National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), which also held that a hostile work environment claim is timely if any act contributing to it falls within the period, because such a claim is by its nature a single unlawful practice. The Lilly Ledbetter Fair Pay Act provides that each discriminatory paycheck restarts the period for a compensation claim.

Dual filing. Work sharing agreements between the EEOC and FEPAs mean a charge filed with one is generally deemed filed with the other, and either may investigate. The state claim may have a longer or shorter deadline, broader coverage, or different remedies, and the state agency's process may be materially different.

Exhaustion is not jurisdictional. Fort Bend County v. Davis, 587 U.S. 541 (2019), held that Title VII's charge-filing requirement is a mandatory claim-processing rule that a defendant forfeits if not timely raised — which means an employer must raise exhaustion promptly or lose it.

The first week

1. Calendar the deadline. The notice of charge states a date for the position statement, commonly 30 days. Extensions are routinely granted on request, before the deadline, with a reason. Ask early rather than filing something inadequate on time.

2. Issue a litigation hold. Immediately, and broadly: personnel files, emails, text messages, performance documents, complaints, investigation files, attendance and payroll records, security video, badge access logs, and comparator information. Suspend automated deletion — email purge, video overwrite, and device wipe on separation. The video failure in the opening example is the single most common preservation failure in employment matters.

3. Instruct against retaliation, in writing. Notify the charging party's management chain that no adverse action may be taken without HR and legal review, and that discussing the charge with the charging party or with coworkers is prohibited. Retaliation is the most frequently alleged basis in EEOC charges and the claim most likely to succeed where the underlying claim fails. If the charging party is still employed, this instruction is the most valuable thing done in the first week.

4. Assign counsel or a trained investigator, and decide whether the investigation will be conducted under privilege. Note that if the employer intends to assert a good faith investigation defense — the Faragher and Ellerth affirmative defense in a harassment case, or a good-faith basis for a business decision — it may have to disclose the investigation, waiving privilege as to it. Decide deliberately; do not stumble into a waiver.

5. Notify insurers. Employment practices liability policies are claims-made, and a charge is typically a claim. Late notice can forfeit coverage. Read the definition of claim, the notice provision, and the panel counsel requirement before engaging your own lawyer.

6. Do not contact the charging party. All communication goes through counsel or the agency. Contacting a represented charging party is improper; contacting an unrepresented one is likely to be characterized as intimidation.

7. Locate the file. The personnel file, the performance history, the disciplinary record, the complaint history, the separation documents, and any severance agreement — which may contain a release that disposes of part or all of the claim.

Investigate before you write

The position statement is an advocacy document, and it should be written after the facts are known rather than as a way of finding them out.

Read the charge carefully. Identify each protected basis alleged, each adverse action, the dates, the named individuals, and the theory — disparate treatment, failure to accommodate, harassment, retaliation, or disparate impact. A charge form is usually short and the narrative imprecise; the agency will interpret it broadly, so respond to what it reasonably encompasses rather than only to what it literally says.

Assemble the documents before interviewing anyone: the personnel file, performance reviews, disciplinary records, attendance records, compensation history, the job description, applicable policies and the acknowledgment of receipt, the complaint and investigation file if any, communications, and the separation documents.

Interview witnesses, with counsel where the exposure warrants it:

  • The decision-maker, first and most carefully. What did they know, when, and what was the actual reason? Ask what they would say if asked to explain the decision under oath, because they will be.
  • The charging party's supervisor and coworkers.
  • HR personnel involved.
  • Comparators where relevant.

Document interviews contemporaneously. Where counsel conducts them, give Upjohn warnings.

Build the comparator analysis, which is the heart of most disparate treatment cases. Identify every employee who engaged in similar conduct or was similarly situated — same supervisor, same standards, comparable role — and what happened to each. If a comparator outside the protected class was treated more favorably, know it now. If the comparators were treated the same, that is the strongest fact the employer has, and it belongs in the position statement with the underlying data.

Test the stated reason. Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the employer must articulate a legitimate, non-discriminatory reason, and the plaintiff may then show it is pretext. Pretext is proven by shifting explanations, by a reason unsupported by the record, by inconsistent treatment of comparators, and by timing. So ask hard questions internally: Is the stated reason documented? Was it documented before the protected activity? Have we said the same thing to the unemployment agency? Does the timeline support it?

Note the standards that have shifted. Bostock v. Clayton County, 590 U.S. 644 (2020), holds that discrimination because of sexual orientation or gender identity is discrimination because of sex. Muldrow v. City of St. Louis, 601 U.S. 346 (2024), holds that a discriminatory transfer requires only some harm with respect to an identifiable term or condition, not "significant" harm. Groff v. DeJoy, 600 U.S. 447 (2023), raised the religious accommodation standard from de minimis cost to substantial increased costs. Each expands what is actionable, and a position statement built on the older standards will be answering the wrong question.

The position statement

What it is. The employer's written response to the charge, submitted to the agency, and — critically — provided to the charging party on request under EEOC procedures, with an opportunity to respond. Write it knowing the charging party and their lawyer will read it, and that it will be an exhibit in any litigation.

Structure that works:

  1. Introduction — the employer's identity, the charging party's employment dates and role, and a short statement of the outcome the employer seeks.
  2. Threshold issues, if any — employee-count coverage, timeliness, whether the charging party is an employee, and any release. Raise them, briefly, without making them the whole statement.
  3. Background — the business, the workforce, the relevant policies, and the reporting structure.
  4. The facts, chronologically, with specificity: dates, names, and documents. Cite the exhibits.
  5. The legitimate, non-discriminatory reason for each challenged action, stated once and stated consistently.
  6. Comparator evidence — how similarly situated employees outside the protected class were treated, with data.
  7. Response to each allegation, tracking the charge's structure so nothing appears unanswered.
  8. The retaliation analysis separately: what the employer knew about the protected activity, when, and what independently documented reasons predate it.
  9. Conclusion requesting dismissal.
  10. Exhibits, indexed and Bates-numbered.

What to include:

  • Documents that support the stated reason — the performance reviews, the warnings, the investigation file, the policy and the signed acknowledgment.
  • Contemporaneous documentation. A warning issued three months before the protected activity is worth more than any argument.
  • Comparator data where it helps.
  • The policy and evidence it was communicated and consistently enforced.

What to withhold or handle carefully:

  • Privileged material, unless waiver is a deliberate decision.
  • Confidential information of other employees — the EEOC's procedures direct employers to segregate confidential information (medical, personnel information of others, trade secrets, and financial data) into separately labeled attachments, with an explanation of why each is confidential. Material not so segregated may be disclosed to the charging party.
  • Speculation about the charging party's motives. It reads badly and proves nothing.
  • Characterizations of the charging party's personality. The memorandum in the opening example — "always difficult," "complained about everything" — is precisely the evidence a plaintiff wants, because it links the protected activity to the employer's assessment.
  • Legal argument in volume. The investigator is not a judge. A concise statement of the legal standard is useful; ten pages of case citations is not.

Tone. Factual, professional, and free of adjectives. An angry position statement damages the employer more than the charging party.

Consistency. The position statement, the unemployment response, the internal investigation conclusion, and any future summary judgment brief must tell the same story. Shifting explanations are the most reliable evidence of pretext, and they usually arise not from dishonesty but from different people writing different documents without reading each other's.

Requests for information, site visits, and interviews

Requests for information (RFIs) follow the position statement and are often broad — policies, organizational charts, applicant flow data, personnel files for comparators, compensation data across a department, and complaint histories.

How to respond:

  • Negotiate scope. Investigators regularly narrow requests where the employer explains the burden and offers an alternative. Ask what the investigator is trying to determine.
  • Object where appropriate, in writing, with a reason, while producing what is not objectionable.
  • Watch for scope expansion. A request for company-wide data in a single-plaintiff charge signals that the agency may be considering a systemic investigation. That is a different matter with different stakes, and counsel should be involved before responding.
  • Produce organized material with a cover letter and an index.
  • Confidentiality. Mark and segregate confidential material.
  • Note that the agency has subpoena authority and can enforce it in district court, so blanket refusal is not a strategy.

On-site visits. The investigator may request a facility tour and interviews. Prepare: identify who will be interviewed, prepare them (tell the truth, answer the question asked, do not speculate, do not guess at dates), and understand that management employees may have counsel present while non-management employees may be interviewed privately without the employer present. Do not instruct employees on what to say, do not ask them afterward what they said, and do not treat anyone differently for participating — each of those is a retaliation claim.

Witness statements. The agency may take statements. The employer should not attempt to control them, and should ensure no one suggests to employees that participation is unwelcome.

Mediation, conciliation, and settlement

EEOC mediation is offered early in many charges, is voluntary for both sides, is confidential, and is separate from the investigation — mediators do not share information with investigators.

Whether to mediate:

  • In favor: it is free, it is fast, resolution avoids the investigation and any litigation, and the settlement values at this stage are typically far below post-litigation numbers. It also avoids the cost of the investigation itself, which for a document-intensive charge can exceed a modest settlement.
  • Against: it can signal weakness in a meritless charge; it may not resolve related claims; and where the employer intends to defend the practice as a matter of principle or precedent, settling one charge may invite others.

If settling, the agreement should include: a release of all claims (with the ADEA requiring OWBPA compliance for employees 40 and over — 21 or 45 days to consider, 7 days to revoke, and advice to consult counsel); confidentiality, subject to the limits discussed below; non-disparagement, similarly limited; no admission of liability; a neutral reference commitment; withdrawal of the charge; and treatment of unemployment benefits and tax reporting.

Limits on settlement terms that employers frequently get wrong:

  • A release cannot bar the employee from filing a charge with or participating in an EEOC investigation. It can bar the employee from recovering monetary relief from a subsequent charge.
  • The Speak Out Act, 42 U.S.C. §§ 19401-19404, voids predispute nondisclosure and non-disparagement clauses covering sexual assault and sexual harassment disputes.
  • The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, 9 U.S.C. §§ 401-402, permits a claimant to void a predispute arbitration agreement as to those disputes.
  • Several states restrict confidentiality provisions covering harassment and discrimination claims, and some require specific language or a carve-out permitting disclosure of the underlying facts.
  • Overly broad confidentiality and non-disparagement provisions in a severance agreement can independently violate the National Labor Relations Act as to non-supervisory employees.
  • Section 162(q) of the Internal Revenue Code denies a deduction for settlement payments and attorney's fees related to sexual harassment or abuse if subject to a nondisclosure agreement — a tax consequence worth modeling before insisting on confidentiality.

Conciliation is different from mediation: it occurs after a cause determination, and the agency is a party to it, seeking relief for the charging party and often systemic relief. The EEOC must provide the employer with the factual and legal basis of its determination and a description of the relief sought before conciliation, and conciliation failure is a prerequisite to the agency suing.

Determinations and what follows

Dismissal and Notice of Rights — the agency closes the file without a finding, most commonly because it is unable to conclude that the information establishes a violation. The charging party receives a right to sue notice and has 90 days to file suit. This is the most common outcome, and it is not a finding that no discrimination occurred.

Cause determination — the agency finds reasonable cause to believe a violation occurred. It then invites conciliation. Cause determinations are issued in a small percentage of charges, and they are consequential: they are admissible in some circumstances, they invite plaintiff's counsel, and they can precede an EEOC lawsuit.

Right to sue on request — a charging party may request a notice of right to sue 180 days after filing, before the agency completes its investigation, and frequently does when represented by counsel who prefers litigation to the administrative process.

EEOC litigation. The agency may sue in its own name, and does so selectively, typically in cases with systemic implications, egregious facts, or vulnerable workers. An EEOC suit is not limited to the charging party and can seek classwide relief.

Systemic investigations and commissioner charges. The agency may expand a single charge into a pattern-or-practice investigation, or a commissioner may initiate a charge without any individual complainant. Signals: RFIs seeking company-wide applicant flow, compensation, or termination data; requests for data by protected class; and questions about policies rather than about the charging party. When these appear, counsel should engage immediately, because the exposure is categorically different.

After the right to sue. The 90-day period is strictly enforced. On receipt, the employer should reassess: preserve everything, evaluate whether the claims exceed the scope of the charge (claims not reasonably related to the charge may not be exhausted), evaluate any arbitration agreement and whether the sexual harassment carve-out applies, confirm insurance coverage and the carrier's counsel requirements, and decide whether to attempt resolution before the complaint is filed — which is frequently the cheapest moment remaining.

Preventing the next one

Charges are a lagging indicator of practices that were in place months or years earlier.

Documentation, contemporaneous and specific. The single strongest defense in nearly every charge is a performance record created before any protected activity. Train managers that a review saying "meets expectations" for an employee they are preparing to terminate is not a kindness — it is the plaintiff's exhibit.

Consistency. Comparator analysis decides these cases. Apply policies uniformly, and where an exception is made, document the reason at the time.

A working complaint process. Multiple channels, at least one bypassing the direct supervisor, prompt and impartial investigation, documented findings, and closure communicated to the complainant. A functioning internal process resolves problems before they become charges, and it supplies the Faragher/Ellerth affirmative defense in harassment cases.

Anti-retaliation discipline. A review hold on personnel actions affecting anyone who has complained, and an audit at 90 and 180 days comparing their treatment to a comparator group. Retaliation is the most alleged and most winnable claim; it is also the most preventable.

Accommodation processes for disability, religion, and pregnancy, with a named coordinator, a targeted medical inquiry form, an interactive process, and documentation. See the accommodation guidance elsewhere in this library.

Manager training on the three things managers actually control: documenting performance contemporaneously, routing complaints and accommodation requests to HR rather than resolving them personally, and not treating anyone differently after they complain.

Exit interviews and separation review. A short pre-termination checklist — is the reason documented, is it consistent with comparators, is the employee on protected leave, has the employee recently complained, is final pay ready — catches most problems while they can still be fixed.

A worked example

Return to the manufacturer, handled properly.

Day 1. Counsel engaged. Litigation hold issues to 14 custodians and to IT, suspending the 30-day video overwrite, the 90-day email purge, and device wipe on separation. The video from the incident date is preserved. EPLI carrier noticed.

Day 2. Written instruction to the plant manager and the former supervisor's chain: no discussion of the charge, no contact with the charging party, and no personnel action affecting any witness without legal review.

Days 3-12. Investigation. Counsel interviews the decision-maker, two witnesses to the quality report, the HR manager, and the quality director. The interviews establish that the falsified report was discovered through a routine audit, that the audit predates any complaint by the charging party, and that two other supervisors — one white, one Hispanic — were terminated in the prior 18 months for comparable falsification.

Day 14. Counsel requests and receives a 30-day extension.

Days 14-30. Documents assembled: the audit finding with its date, the report itself, the investigation memorandum, the termination documentation, the policy and the charging party's signed acknowledgment, and the personnel files of the two comparators with confidential information segregated.

Day 40. Position statement filed. Fourteen pages plus 11 exhibits. It states the reason once; documents that the audit predated any protected activity; presents the comparator evidence with dates and outcomes; addresses the retaliation allegation separately by establishing what the decision-maker knew and when; and does not characterize the charging party's personality at all. Confidential comparator information is segregated into a separately labeled attachment with an explanation.

Day 75. RFI seeking termination data for the facility for three years by race. Counsel negotiates the scope to supervisory terminations, produces it, and notes that the data shows no disparity.

Day 140. The agency issues a dismissal and notice of rights.

What made the difference: the video, preserved on day one; a stated reason documented before the protected activity; comparator evidence produced with the position statement rather than asserted; and no document anywhere characterizing the charging party as difficult.

Frequently asked questions

Do we have to respond to a charge? You are not compelled to submit a position statement, but the agency will decide on the information it has, and an employer that says nothing has forfeited its best opportunity. Respond.

Will the charging party see our position statement? Yes, on request under EEOC procedures, with an opportunity to respond. Segregate confidential material into separately labeled attachments with an explanation.

Can we terminate the charging party while the charge is pending? Only with legal review and a documented, independent reason predating the protected activity. Terminating during a pending charge is the paradigm retaliation fact pattern.

Should we mediate? Often yes, especially where the exposure is uncertain and the cost of the investigation approaches the likely settlement. It is free, fast, and confidential.

Can our settlement prohibit the employee from filing another charge? No. It may bar monetary recovery from a subsequent charge, but not the right to file or to participate in an investigation.

What if the charge is filed by someone who was never our employee? Raise coverage — independent contractor status, staffing agency employment, or applicant status — but understand that joint employment doctrines may reach you anyway.

Is a no-cause determination a finding that nothing happened? No. It means the agency was unable to conclude that the information obtained establishes a violation. The charging party may still sue within 90 days.

How long does this take? Highly variable. Some charges close in a few months; investigations commonly run a year or more, and a systemic investigation considerably longer.

Conclusion

The response to an EEOC charge is an exercise in establishing a story that the employer can live with for several years, because the position statement will be the first document read in any litigation that follows and every later account will be measured against it.

Three things determine the outcome. Preservation, executed in the first days, before anyone knows what matters — the video, the emails, the text messages. A reason that was documented before the protected activity, which is either in the file or is not and cannot be created later. And consistency, across the position statement, the unemployment response, the investigation file, and everything the decision-maker will eventually say under oath.

The employers that do badly are rarely the ones with the worst facts. They are the ones whose first two weeks produced a candid memorandum, an unsupported assertion, and a video that no longer exists.

State agencies and the parallel track

Because most charges are dual-filed, an employer usually faces two agencies, and treating the state process as a copy of the federal one is a recurring error.

Coverage is often broader. Many state fair employment statutes reach employers with fewer than 15 employees — several apply at one employee — and protect classes federal law does not: marital status, familial status, sexual orientation and gender identity in states that codified them before Bostock, arrest and conviction record, credit history, caregiver status, height and weight, political affiliation, lawful off-duty conduct, and status as a victim of domestic violence.

Remedies are often larger. A number of state statutes provide uncapped compensatory and punitive damages, where Title VII and the ADA are capped by employer size under 42 U.S.C. § 1981a. Several allow individual liability for supervisors, which federal law generally does not. Several provide mandatory attorney's fees on any recovery. In many states the state claim is worth several times the federal one, which is why plaintiffs' counsel frequently pull the federal charge and proceed in state court.

Procedures differ. Some agencies hold administrative hearings with a hearing officer and issue enforceable orders; some issue probable cause findings that carry more weight than an EEOC cause determination; some have their own mediation programs; and several have shorter filing deadlines than 300 days, which can bar a state claim while the federal one remains alive. A few require an election of remedies — proceeding administratively forecloses a court action, or vice versa.

Practical consequences:

  • Determine at the outset which agency is investigating, whether the other has deferred, and what each requires. A work sharing agreement usually assigns primary responsibility, but not always in the way the employer assumes.
  • Answer both if both require a response. A position statement drafted for the EEOC may not address the additional protected classes or the state-specific standards.
  • Check the state deadlines independently. Do not assume 300 days.
  • Model the exposure under state law, not federal, when evaluating settlement. The federal caps are frequently irrelevant to the actual number.
  • Where the employer operates in several states, do not use one position statement template across them without checking whether the state statute reaches conduct or classes the template ignores.
  • Note that some municipalities — New York City and several others — have their own commissions with statutes construed more liberally than either state or federal law, and their own filing deadlines.

A response calendar

On receipt (day 0-2)

  • Log the charge, the agency, the charge number, and the response deadline.
  • Issue the litigation hold; instruct IT to suspend video overwrite, email purge, and device wipe.
  • Send the written anti-retaliation instruction to the charging party's management chain.
  • Notice the EPLI carrier in the form the policy requires.
  • Retrieve the personnel file and any severance agreement.

Week 1

  • Engage counsel; decide whether the investigation will be privileged.
  • Read the charge and identify every basis, action, and date.
  • Request an extension if needed, before the deadline, with a reason.
  • Confirm coverage: employee count, employment relationship, timeliness, and any release.

Weeks 2-4

  • Interview the decision-maker first, then witnesses; document contemporaneously.
  • Assemble documents and build the comparator analysis with data.
  • Test the stated reason against the timeline, the documentation, and the unemployment response.
  • Decide whether to seek early mediation.

By the deadline

  • File the position statement: facts, documents, comparators, retaliation addressed separately, confidential material segregated with an explanation.
  • Index and Bates-number the exhibits.

After filing

  • Calendar RFI responses; negotiate scope before responding.
  • Prepare witnesses for any interview or site visit; do not instruct them on content.
  • Watch for scope expansion signals — company-wide data requests, questions about policies rather than the individual.
  • Audit the charging party's treatment at 90 and 180 days if still employed.

On determination

  • Dismissal: calendar the 90-day suit window; preserve everything.
  • Cause: engage counsel immediately on conciliation strategy and exposure.
  • Right to sue: reassess claims, arbitration, insurance, and pre-suit resolution.

Annually, regardless

  • Review charge history for patterns by manager, department, and basis.
  • Confirm managers were trained on documentation, complaint routing, and retaliation.
  • Confirm the accommodation and complaint processes are functioning and documented.

Related articles

This guide is provided for general informational purposes and does not constitute legal advice. Charge procedures, deadlines, and state agency practices vary, and settlement terms are constrained by federal and state statutes that change. Consult qualified employment counsel promptly upon receiving a notice of charge.