Checklist: Responding to an Equal Employment Opportunity Commission (EEOC) charge (USA)

Introduction

This checklist will assist in-house counsel, private practice lawyers, and human resource departments with responding to an Equal Employment Opportunity Commission (EEOC) charge.

This checklist covers the following:

1. Overview of the EEOC complaint process
2. Review a charge of discrimination
3. Consider mediation and prepare for an investigation
4. Take action following an investigation

The checklist is presented as a list of requirements that employers can check off as they are addressed. At the end of the checklist, there are explanatory notes corresponding with each step.

For further information on this topic, see How-to guide: Overview of US employment law and Checklist: Developing an Equal Employment Opportunity Commission (EEOC) compliant policy.

Step 1 – Overview of the EEOC complaint process

Step 2 – Review the charge of discrimination

Step 3 – Consider mediation and prepare for an investigation

Step 4 – Take action following the investigation

Legal framework

The Equal Employment Opportunity Commission (EEOC) enforces the federal laws that prohibit discrimination in employment. This includes discrimination by employers and by organizations that provide training and apprenticeship programs. This checklist is focused on the application of the EEOC process to employers.

Key considerations

An EEOC charge is not a determination of liability; however, any charge must be taken seriously and responded to in a timely manner, even if the allegation is believed to be completely without merit. A charge provides an opportunity to share the charged employer’s position and prove to the EEOC that no discriminatory conduct occurred. A charge is the first step in a process that can lead to court proceedings.

Step 1 – Overview of the EEOC complaint process

Employers should have a general understanding of the EEOC, the laws it enforces and its enforcement regime.

1.1 Understand the federal laws enforced by the EEOC

Some of the key federal laws enforced by the EEOC are listed below.

1.1.1 Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, national origin, sex (defined as gender identity, pregnancy, and sexual orientation), or religion. The Act also prohibits retaliation related to the filing of a discrimination complaint or employee participation in a discrimination-related lawsuit or investigation.

1.1.2 Titles I and V of the Americans with Disabilities Act of 1990

Titles I and V of the Americans with Disabilities Act of 1990 (ADA) protect individuals with disabilities from employment discrimination. Although the ADA applies only to employers with 15 or more employees, state statutes may add additional protections.

1.1.3 The Equal Pay Act of 1963

The Equal Pay Act of 1963 (EPA) protects both men and women from wage discrimination based on sex. The EPA governs all types of compensation, regardless of form, including salaries, bonus structures, insurance offerings, travel or reimbursement allowances, and benefits of any kind.

1.1.4 The Age Discrimination in Employment Act of 1967

The Age Discrimination in Employment Act of 1967 (ADEA) protects employees and applicants aged 40 years or older from discrimination on the basis of age. The ADEA applies to compensation and benefit structures as well as to promotion and termination decisions.

1.1.5 The Pregnancy Discrimination Act of 1978

The Pregnancy Discrimination Act of 1978 (PDA) prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. It protects the employee or applicant from discrimination in hiring as well as discrimination related to compensation, benefits, promotion, termination decisions, and any other aspect of employment.

1.1.6 Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) is a federal law that requires employers to make reasonable accommodations to qualified workers for pregnancy, childbirth recovery, and related medical conditions, including lactation. The law went into effect on June 27, 2023 and final regulations to implement the Act were issued on April 15, 2024 (see Federal Register: Implementation of the Pregnant Workers Fairness Act). The EEOC has issued a summary of the final regulation that went into effect on June 18, 2024 (see EEOC webpage: Summary of Key Provisions of EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act (PWFA)).

1.1.7 Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits discrimination based on genetic information. Specifically, the Act prohibits covered entities –including employers, labor organizations, and training programs – from purchasing or requiring genetic information about their employees.

1.2 Understand the EEOC’s enforcement regime

Enforcement under the EEOC can fall under either the private sector or federal sector.

1.2.1 Private sector enforcement

Private sector enforcement allows the EEOC to investigate, mediate, and litigate charges of discrimination that have occurred in the private sector.

1.2.2 Federal sector enforcement

Federal sector enforcement involves charges of discrimination that originate from a federal agency. In contrast to the private sector, the EEOC does not process complaints of discrimination made by federal employees. Instead, such a complaint would be filed by the employee according to the processes of the agency in which he or she is employed and that agency investigates the complaint.

1.3 Understand the EEOC complaint process

1.3.1 Administrative process

The first step in the EEOC’s administrative process for private sector employees is for the complainant employee, applicant, or former employee to file a formal complaint with the EEOC. There is a separate complaint process for Federal employees and applicants for federal jobs.

Upon receipt of a complaint, the EEOC reviews the complaint and decides whether the case should go forward. The EEOC will also issue a Notice of a Charge of Discrimination (notice of charge) to the employer that is the subject of the complaint (see step 2 below).

If a complaint is incomplete or untimely, the EEOC may dismiss the complaint without investigation. If the complaint proceeds, the EEOC will carry out an investigation, which it must complete within 180 days of the complaint being filed.

Upon the completion of its investigation, the EEOC will allow the complainant to choose between a hearing before an EEOC administrative judge or asking the EEOC to issue a decision. In the event of a finding of non-discrimination by the EEOC, the complainant may appeal the decision by filing an appeal with the EEOC. Alternatively, they can challenge the decision by filing a lawsuit in federal district court. If the complainant chooses to appeal the decision, they must do so no later than 30 days after receipt of the EEOC’s final order. A civil action must be commenced within 90 days of receipt of the final action on an individual or class complaint, or after 180 days from the date of filing a complaint if the EEOC has not taken final action. A civil action may also be commenced within 90 days of receipt of the EEOC’s final decision on an appeal.

1.3.2 Alternative dispute resolution (ADR)

The parties may choose to engage in alternative dispute resolution through mediation to resolve the matter at any point during the EEOC process. Mediation often saves time and money for both parties.

1.3.3 Investigation

For private sector complaints, the EEOC will investigate any complaint that is not procedurally barred. The investigation often involves:

• submission of a statement of position by the employer;
• in-person interviews of the complainant and other employees;
• written interrogatories issued by the EEOC to the parties; and
• requests for information by the EEOC, including requests for copies of relevant business policies or personnel files.

An investigation is required by statute and does not indicate a belief of the EEOC in the guilt of an employer. An on-site investigation will usually, however, indicate to the employer that the EEOC is taking a particularly keen interest in their business practices.

During an investigation, the employer – also known as the charged party – will need to provide requested information to the EEOC investigator. The investigator will review all the information provided and will make a recommendation as to whether they have a reasonable belief that unlawful discrimination occurred.

1.3.4 Conciliation

Conciliation is a voluntary process that can take place after the EEOC finds that discrimination has occurred. It is encouraged by the EEOC as it allows the parties to resolve and settle the complaint without the need for litigation. If conciliation does not resolve the complaint – or if the parties decline conciliation – the EEOC will determine whether to proceed against the charged party in federal court.

1.3.5 Litigation process

Litigation occurs only after the EEOC has determined that discrimination has occurred and is a measure of last resort. The EEOC does not litigate every finding of discrimination. When determining whether to proceed against an employer, the EEOC considers all relevant factors including:

• the severity of the discrimination;
• the legal issues of the case;
• the potential impact of the case on the EEOC’s primary goal of combatting workplace discrimination; and
• the EEOC’s available resources.

When the EEOC decides that litigation is warranted, it files a lawsuit in federal court against the employer on behalf of the aggrieved individual(s). Such a lawsuit can result in various remedies, including monetary damages (eg, back pay, compensatory damages, and in some cases, punitive damages). A court may also order injunctive relief against discriminatory practices, and may mandate that employers implement preventative measures.

Step 2 – Review the charge of discrimination

The steps an employer should take upon receipt of a charge of discrimination are set out below. A valuable resource made available by the EEOC is What You Can Expect After a Charge is Filed.

2.1 Carefully review the Notice of Charge of Discrimination

A notice of charge from the EEOC is a document that informs an organization that a charge of discrimination or complaint by an employee or job applicant has been filed against it. The notice of charge puts the employer on notice of its rights and responsibilities related to the complaint, advises the employer how to respond to the complaint, and sets out how the employer should participate in the EEOC’s investigation.

2.2 Check that the notice of charge was timely

Some charges of discrimination may be dismissed by the EEOC without an investigation. This may occur if the complainant filed the complaint more than 180 days after the discriminatory event took place. That time period is extended, however, to 300 days in certain situations detailed further below.

Before commencing an investigation, the EEOC will consider whether the charge was timely. Weekends and holidays are included in the calculation, with the exception that if the deadline falls on a holiday or weekend, the deadline will be extended until the next business day.

2.2.1 The 180-day requirement

Federal anti-discrimination laws give the complainant a limited amount of time to file a charge of discrimination. In general, the complainant must file a charge within 180 calendar days from the day the discrimination took place.

2.2.2 The 300-day requirement

The 180-calendar-day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. For example, if a city’s human rights office enforces a local ordinance prohibiting discrimination based on race, a complainant making a complaint for racial discrimination has 300 days from the day the discrimination took place. For age discrimination matters, the filing deadline is only extended to 300 days if there is a state law prohibiting age discrimination in employment and a state agency or authority is tasked with enforcing that law. The ADEA deadline is not extended for a race discrimination complaint if there is only a local law that prohibits age discrimination.

2.3 Consider working with counsel

Employers facing an EEOC investigation should consider hiring counsel. This is particularly important if the employer:

• has been told that the EEOC intends to carry out an on-site audit or interviews with employer personnel; and/or
• receives a charge that involves repeated acts of discrimination directed against multiple employees.

Hiring outside counsel at an early stage may ultimately save a significant amount in unnecessary litigation expenses, fees, and fines if the EEOC later decides to litigate. Outside counsel may have more experience with EEOC matters and may have a better understanding of the laws and regulations. Outside counsel is also better able to take an objective view of the matter and steer the employer toward an out-of-court resolution of the case.

2.4 Check whether EEOC laws apply to the complainant’s claims

Employers should check that the complainant is in a class protected by the EEOC and that the allegation falls into a category covered by the EEOC.

2.4.1 Protected classes

The EEOC protects employees (both present and former) as well as job applicants from discrimination. It does not protect independent contractors or uncompensated volunteers.

For further guidance on the difference between employees and independent contractors, see Checklist: Determining the difference between an employee and an independent contractor.

2.4.2 Types of discrimination

Not every allegation will fall within a category governed by the EEOC. The EEOC only considers those claims involving age, race, nationality, gender, disability, pregnancy, equal pay, genetic information, harassment, retaliation in response to discrimination, sexual harassment, gender identity, and sexual orientation. If a complaint involves a claim that does not involve one of those categories – for example, repeated jokes made about an individual’s preferred music – the EEOC would not consider the claim.

It is crucial for organizations to understand the scope of the EEOC's jurisdiction to properly triage and address employee complaints. While the EEOC focuses on specific protected characteristics under federal law, employers still have a broader ethical responsibility to foster a respectful and professional work environment. Therefore, even if a complaint doesn't fall under EEOC purview, such as the example of jokes about musical tastes, it might still warrant internal investigation and action based on company policy, to prevent the escalation of workplace conflict or the creation of a hostile environment that could impact employee morale and productivity.

2.5 Ensure the organization retains all relevant documents

If an employer receives a notice of charge from the EEOC it should maintain all relevant documents for the EEOC’s review.

All employers are required to keep employment records for one year from a date of involuntary termination.

In addition, under ADEA recordkeeping requirements, employers must keep:

• all payroll records for three years; and
• records related to benefits for at least one year post-termination.

For EPA-related records, the Fair Labor Standards Act requires employers to maintain:

• payroll records for at least three years post-termination; and
• records involving the payment of different wages to employees of opposite genders for two years or more.

Employers should keep all documentation relating to the notice of charge until the charge is resolved either through the EEOC or litigation. Note that this includes personnel records that may be relevant to the charge and not just the employee records of the complainant.

2.6 Ensure the employer protects employees against retaliation

Pursuant to federal anti-discrimination laws, the employer must protect employees against retaliation related to commencing or participating in an investigation of discrimination. Retaliation may occur, for example, if an employee receives a low performance evaluation, a reprimand, a transfer to a substandard position, or increased scrutiny. If not already established, a policy that prohibits retaliation of any kind should be adopted and made available to all employees. Furthermore, employers should encourage open door policies and environments where employees are treated consistently and can bring complaints forward without fear of discriminatory actions.

For further information see Checklist: Developing an Equal Employment Opportunity Commission (EEOC) compliant policy.

Step 3 – Consider mediation and prepare for an investigation

3.1 Consider mediation

If both parties agree, the EEOC provides an opportunity for confidential, free mediation. The information disclosed in this mediation will not be used against the employer by the EEOC in any future litigation.

Mediation can save time and money for both parties and should be considered in order to resolve the complaint quickly. After a charge is filed, the EEOC may contact both the employee and employer to ask if they are interested in participating in mediation. The decision to mediate is entirely voluntary. Mediation will be scheduled only if both parties agree to it. If the parties do not reach an agreement at the mediation, the charge will be investigated in the same way as any other charge. A written signed agreement reached during or after mediation is an enforceable contract.

Note that agreeing to mediation is not an admission of guilt.

If it is successful, mediation results will be kept confidential by the EEOC and cannot be used against the employer in any subsequent investigations or litigation by the EEOC.

3.2 Prepare a position statement

A notice of charge normally provides an employer with 30 days to gather the information requested by the EEOC and submit a position statement and any attachments in response. The notice of charge will include instructions that the employer must follow. The EEOC has provided guidance on what they consider in Effective Position Statements, and that guidance includes direction on what should be included in a position statement.

The employer’s submissions are usually made electronically through the EEOC’s Digital Charge System, which is preferable to faxing or mailing the documentation to the EEOC.

The position statement should include specific, factual responses to every allegation in the charge and include attachments as necessary to support the employer’s position.

3.2.1 Timing of statement

The employer’s position statement must be filed with the EEOC within the deadline stated in the notice of charge. Although the EEOC may provide a brief extension, the employer must show that it is diligently working to supply all the necessary information.

If additional time is needed to respond, a request may be made to the EEOC. The requesting party should explain how the employer is attempting to respond to the requests and why additional time is needed. For example, an employer may request more time on the basis that they need to review and reproduce a large volume of paper documents. Extra time to respond may be granted if the employer can demonstrate that it is exercising due diligence in recovering those documents. Forwarding some of the documents and making a partial response will help to show due diligence.

3.2.2 Content of statement

The position statement should be drafted in a clear, concise, and effective manner. It must address each allegation of discrimination, even if it is believed by the employer to be frivolous, and include copies of all relevant policies, internal investigations, and other documentation. The EEOC must be informed if the matter has already been resolved by mutual agreement between the employer and employee and explain why other employees have not been affected (eg, if the employee is complaining of discrimination directed only at them instead of a pattern of acts directed at similarly situated employees). Note that the position statement should not be drafted like an answer to a complaint in a civil action, but should include facts in support of the employer’s position.

3.2.3 Redactions

When submitting the position statement, any sensitive medical information, confidential trade secret or financial information, social security numbers, and other non-relevant personal identifying information should be separated into attachments. The EEOC will review attachments and allow redaction as necessary.

3.2.4 Signatures

Before it is submitted, the position statement should be signed by an officer, agent, or representative of the employer authorized to speak officially on its behalf.

3.2.5 Submission

Submit the position statement through the EEOC’s Respondent Portal with supporting documentation attached through the + Upload Documents button. Note that once submitted, the position statement cannot be deleted or changed.

3.3 Ensure the employer responds to requests for additional information

3.3.1 Requests for organizational policies, documents, and files

As part of its investigation the EEOC may request organizational policies, documents, and files from the employer. This is standard practice as part of the EEOC investigation.

3.3.2 Requests for contact information of witnesses

The EEOC may also request contact information for witnesses. These may be management or executive personnel of the employer or other employees familiar with the facts related to the charge.

3.4 Prepare for any EEOC scheduled visit to the employer

If the EEOC schedules a site visit, an employer should consult with legal counsel, as a site visit indicates that the EEOC does not consider the matter to be a run-of-the-mill investigation.

3.4.1 Interviews

The EEOC may also require the employer’s employees to submit to interviews. Employees required to attend an interview should be reminded of the employer’s anti-retaliation policy and advised that it is acceptable to answer ‘I don’t know’ if they do not know the answer to a question.

3.4.2 Record gathering

It may be advisable to refresh any potential witnesses’ recollection of events by allowing them to review documents and position statements before the EEOC’s visit. This may also provide the employee with a level of comfort ahead of their EEOC interview.

3.5 Check for any amendments to the charge

The complainant may be able to file amendments to the charge, alleging new acts of discrimination. If this occurs, the employer will be provided with the amended charge and must respond to the amendments as well.

3.6 Ensure the employer regularly checks the status of the charge

The employer can check the status of the charge by visiting the EEOC’s Online Charge Status System. There is no limit on how often an employer can check the status of the charge, and it should be checked on a regular basis for updates from the assigned investigator regarding the progress of the investigation. For additional guidance employers can also check the EEOC Online Charge Status System Flow Chart to see what happens procedurally once an EEOC charge is filed.

3.7 Establish whether a subpoena has been issued

Subpoenas may be issued by the EEOC. The subpoenaed information would need to be relevant, not burdensome for the employer to provide, and should consider the privacy concerns of medical, confidential, or personal information. The recipient of a subpoena that is violative of any of those three requirements may petition the EEOC to revoke or modify the subpoena. This must be done no later than five days from receiving the subpoena, at which time the EEOC will determine whether to revoke or modify the subpoena or seek judicial enforcement of the subpoena.

Step 4 – Take action following the investigation

After completion of the investigation, the EEOC will determine if there is reasonable cause to believe discrimination has occurred. The complainant chooses between a hearing before an EEOC administrative judge or asking the EEOC to make the decision.

4.1 Consider any invitation to engage in conciliation

If the EEOC finds that discrimination has occurred as outlined at 1.1.3, it will invite the parties to engage in conciliation.

4.2 Establish whether the EEOC issued the complainant a notice of right to sue

If the parties decline conciliation, or if conciliation does not resolve the matter by agreement of the parties, the EEOC will decide whether it wishes to proceed against the employer in federal court. If the EEOC decides not to litigate, the complainant will receive notice of a right to sue and would be required to file a lawsuit in federal court within 90 days.

4.3 Consider a voluntary settlement between the parties

A voluntary settlement may also be reached between the parties at any time during an EEOC investigation. A voluntary settlement does not involve any admission of liability, and the charge against the employer will be dismissed. Parties are free to agree to virtually any terms as a part of their settlement. A terminated employee may be reinstated in their former position, or an employee who was denied a raise may receive monetary compensation. It is important to note that settlement agreements are enforceable by the EEOC and should not be entered into as an easy means of disposing of a complaint.

4.4 Establish whether the case has been referred to EEOC legal staff

If a finding of discrimination has occurred, the EEOC will consider whether to file a lawsuit against the employer in federal court. The EEOC will look at multiple factors including, but not limited to, the severity of the violation, the factual and legal questions presented by the case, and the impact the case may have on the general public. The EEOC’s Litigation page provides information explaining the EEOC’s Litigation and General Counsel’s office policies and procedures.

Additional resources:

EEOC: www.eeoc.gov

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