15 Days to Protect Your Business: Responding to an EEOC Discrimination Charge

When a charge of discrimination arrives, the temptation is to set it aside until things calm down. Two recent developments make waiting a costly mistake. The EEOC has cut the time employers get to respond in half. And the Eleventh Circuit has shown how a hurried response can undermine an employer’s defense years later.

Less Time to Respond

For years, employers had about 30 days to submit a position statement, and extensions were routine. Since this summer, EEOC notices have set 15-day deadlines, and investigators have reportedly been told to allow only one extension of seven to ten days.

The agency hasn’t formally announced the change, and its website still says 30 days, though a spokesperson has acknowledged deadlines vary among offices. Missing the deadline is risky: the EEOC may issue a cause finding when a position statement arrives late or not at all. In our experience, investigators are still granting short extensions, but only when the request comes from an attorney.

What You Say Will Be Used: Hall v. Coal Bed Services

On September 1, the Eleventh Circuit decided Hall v. Coal Bed Services, Inc., a published opinion binding on Florida’s federal courts. Two Black laborers were fired after refusing a drug test, while a White coworker who refused the same test was rehired the next workday. The employer’s EEOC position statement described the test as random. In his deposition, the supervisor testified he ordered it because a coworker reported seeing the two men smoking marijuana on the job.

The court saw two possibilities: either the company wasn’t fully truthful with the EEOC, or it reworked its story for litigation. At summary judgment, the court had to assume the company “told the truth sooner instead of later.” For purposes of the motion, the marijuana report never happened. This one inference wiped out the employer’s best fact. It undercut the company’s explanation for treating the White coworker differently. It also undercut the argument that the reported drug use, rather than the employees’ discrimination complaint, set the firings in motion. The court also noted the position statement never mentioned the owner’s claimed conversation urging one of the men to stop using drugs. The inconsistency was one of several pieces of evidence, but it did outsized damage, and summary judgment was reversed on every claim.

The lesson: whatever goes into your position statement may become the version a court accepts as true, and you now have half the time to get it right.

Your First 15 Days

Day 1: Route it. Send the charge to your employment counsel the day it arrives. If you carry employment practices liability (EPLI) coverage, notify your carrier the same day. Many policies treat an agency charge as a claim, and late notice can jeopardize coverage. Carriers usually assign or approve defense counsel, which takes time, so follow up until counsel is in place. Calendar the deadline stated in the notice, whether it comes from the EEOC, the Florida Commission on Human Relations, or a local agency. The due date doesn’t move because an email sat unread.

Days 2–4: Buy time and gather the record. If you’ll need more time, have counsel ask now, and keep working as though the original deadline still stands. Pull the personnel file, applicable policies, disciplinary history, and the decision-makers’ emails and texts. If both sides agree to EEOC mediation, the position statement is generally deferred while mediation is pending.

Days 5–10: Talk to the decision-makers before anyone writes. Counsel should interview everyone involved in the decision. The goal is a position statement consistent with what those witnesses will say under oath, not a quick summary of what HR remembers.

Days 11–15: Draft, verify, submit. Check every factual statement against the documents and the witnesses. If the deadline can’t be met, counsel can file a partial response, preserve all defenses, and request a short extension to finish.

Before the Next Charge Arrives

• Keep your EEOC Respondent Portal contacts current so new charges reach the right person.
• Designate one person responsible for getting every charge to counsel and the carrier the same day.
• Document discipline when it happens. The Hall employer had documented earlier drug-related terminations but not this one, and the court noticed.

Need help building a charge-response protocol, or counsel ready to step in when the next charge arrives? Robert E. Paradela, Jr. and Wicker Smith’s Labor & Employment group can help, whether on an ongoing basis or as needed.