Navigating Workplace Retaliation Charges in the COVID Era: Preparing an Effective EEOC Position Statement

Nearly two years into the coronavirus pandemic, we are seeing an increasing number of EEOC Charges of Discrimination include claims of retaliation, not only for discrimination of statutorily protected persons, but also with respect to employers’ response and remediation of COVID-19 related issues.

EEOC Chair Burrows announced an EEOC initiative, launching on November 17, 2021, which will include a virtual dialogue with employers focused specifically on the significance of workers’ anti-retaliation protections for those exercising their rights and the EEOC’s vigorous commitment to enforce those rights. Chair Burrows has stated “Retaliation is a persistent and urgent problem in American workplaces. Charges alleging retaliation have increased as a percentage of the total number of charges filed with the EEOC every year for the last 20 years. Together, working with our interagency partners and with employers, we must tackle this urgent problem and help ensure that employers have effective strategies for taking immediate action to stop retaliation.”

Charges associated with retaliation claims present unique challenges for employers investigating and addressing internal employee complaints of discrimination.  Best practices for handling these charges include a thorough investigation of any complaints of discrimination, including those implicating the American Disabilities Act and the employer’s response to and remediation of the spread of COVID-19.  Employers should interview all employees associated with any discrimination complaints, including not only the complainant and those accused, but supervisors and witnesses as well. Clearly documenting all witness statements and internal findings is key.

Employers must also effectively remediate any situations suggesting that an employee has been discriminated against or targeted in a retaliatory manner. This may include termination of those found to have engaged in discriminatory conduct and heightened protections for the adversely affected employee, which should also be documented.

Employers facing a situation in which an aggrieved employee files a Charge of Discrimination with the EEOC without first making an internal complaint will be called upon by the EEOC to prepare a position statement. When developing a position statement, several considerations and drafting tips should be kept in mind to maximize the statement’s effectiveness.

Documentation, documentation, documentation.

The EEOC will request employers to produce in appropriate electronic format several key pieces of documentation, including employers’ statistics regarding the diversity of their workforce, any previous complaints made by other similarly situated employees, personnel files, documentation related to internal investigations, and witness statements.  In responding to the Charge of Discrimination, employers should be able to provide comprehensive documentation fully responding to the EEOC’s requests. If the employer does not possess all requested documentation, the position statement should fully explain the reasons for any missing information.

Sequester private employee information.

The EEOC emphasizes the importance of sequestering, and not disclosing, employees’ personal health information or other private information contained within their personnel files. This includes social security numbers, confidential banking information, and sensitive health information, all of which should generally be redacted. However, employers should pay particular care to the disclosure of sensitive health information when responding to allegations of retaliation based on employers’ COVID-19 policies. These types of complaints often intertwine with unique and sensitive health information, for example, medical conditions preventing employees from safely wearing face coverings such as chronic breathing or lung conditions. Employers should be mindful of the need to fully respond to the employee’s Charge while protecting that employee’s privacy, which can be a delicate balance.

Respond by the deadline provided by the EEOC.

When requesting a response to a Charge of Discrimination, the EEOC will provide a specific deadline. Generally, unless exigent circumstances exist, the employer should endeavor to respond within the time frame provided by the EEOC or seek only a brief extension accompanied by a legitimate explanation. One exception to this best practice is in the event that the employer opts to proceed with the EEOC’s mediation process. Typically, if the parties elect to mediate in this manner, the employer is given the option to extend preparation of their position statement. Any decision to delay providing this statement should be made strategically, however, because the position statement allows an employer to tell their side of the story.

Be thorough and concise in the narrative of the position statement.

The position statement should be drafted in concise plain language and not in legalese.  The narrative should provide all key facts, the employers’ policies targeted to protect employees’ rights, the result of any internal investigations, and a detailed explanation for any adverse employment actions against the Charging Party. While painting a clear picture is critical, the position statement must focus on the key details and facts, without offering too much extraneous information. Additionally, the position statement should note if the employee failed to make any internal complaint to the employer, especially where the employee alleges a pattern of discrimination practices.

Responding to EEOC Charges of Discrimination presents unique challenges to employers. Your response strategy should focus on communicating the specific and relevant facts associated with each situation. Working with an experienced and skilled legal team can help maximize your chances of obtaining a finding by the EEOC of no reasonable cause to proceed.