Half the Time: EEOC Quietly Cuts Position Statement Deadlines to 15 Days, Limits Extensions

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Many employers receiving a charge of discrimination from the U.S. Equal Employment Opportunity Commission (EEOC) now have much less time to tell their side of the story. Since the summer, employers have noticed that the EEOC has cut the time they have to respond to a charge of discrimination in half, from 30 days to 15 days. The agency has also signaled that extensions will be shorter and require a showing of good cause. The agency has not released an updated written policy, but EEOC representatives have informally confirmed these changes. The EEOC's own website still describes the old 30-day period, but employers should go by the deadline stated in the notice they actually receive.

A 15-day deadline substantially shortens the time available to investigate facts, collect documents, interview decisionmakers, and prepare a statement. Employers should consider the practical implications of the shortened timeframe and begin taking steps now to avoid being caught flat-footed when a new charge arrives.

Position Statement Significance

After a charge is filed, the EEOC usually opens an investigation and asks the employer for a position statement that responds to every allegation, raises factual and legal defenses, and attaches supporting documents. A shorter timeframe to provide the position statement materially impacts employers’ responses since the position statement is their first opportunity to frame the facts, identify defenses, and correct inaccuracies in the charge. Employers who fail to prepare in advance may miss their response deadline or provide a rushed or incomplete response, which can negatively impact not only the EEOC investigation but also subsequent litigation.

If an employer misses a response deadline or provides an incomplete response, some EEOC regional offices will issue Requests for Information. Others may proceed directly to the merits of the charge. A reasonable cause determination by the EEOC can negatively impact subsequent litigation and settlement discussions for employers. A rushed or incomplete response may later be used by a charging party as evidence of pretext, imperiling the employer’s chance to win summary judgment in litigation because its proffered explanation for its actions has changed over time.

Next Steps

To ensure readiness in the event of an EEOC charge, employers should adopt organizational preparedness practices, which include:

1. Communication from the EEOC. Confirm how charges reach the company and ensure that the organization’s contact information through the EEOC Respondent portal remains up to date.
2. Internal Coordination. Designate a response coordinator and a backup. The response coordinator and their backup should receive the charge directly from the agency, log the charge and deadline, and immediately begin coordinating the response with human resources, appropriate management representatives, and counsel.
3. Protocol. Adopt a written position statement protocol that sets internal checkpoints well ahead of day 15 and provides for quick communication among human resources, managers, and legal.
4. Early, Short Extensions. Request extensions early—with justification. Organizations that know they will need extra time to respond should succinctly explain why and ask for an extension in writing. Be prepared for the EEOC to require a good cause showing and to provide only short extensions.

Position Statement Protocol

While protocols will vary across organizations, all should address the following:

1. Preserve Evidence. Issue a litigation hold when a charge arrives and maintain organized personnel files so that relevant documents and witness information can be pulled quickly.
2. Decide Who Holds the Pen. Determine whether position statements will be prepared by human resources, company management, in-house counsel, or outside employment counsel. Contact the drafter as soon as a charge is received to maximize the time available to review materials, interview witnesses, and draft a strong position statement.
3. Identify Decisionmakers and Other Witnesses. Introduce relevant managers, human resources partners, payroll or benefit contacts, leave administrators, and IT custodians to the position statement drafter. The position statement will need to name the decisionmakers and the reasons for their actions. (These individuals should also receive the litigation hold.) Schedule interviews in the first few days.
4. Gather Evidence. Gather the Charging Party’s job description, performance and discipline history, the applicable employee handbook and other relevant policies, and any other documents mentioned in the charge into one location where they can easily be shared with the position statement drafter.
5. Identify Final Approver. Determine who has the authority to approve a position statement to be finalized and uploaded to the portal. Ensure the approver is prepared to review thoroughly in a short timeframe.

Conclusion

The shortened 15-day deadline narrows the margin for delay. A well-designed and communicated response protocol protects employers by ensuring notices are quickly routed, relevant records secured, key witnesses identified, and counsel engaged early to prepare a comprehensive response. Investing the time now to develop that process can yield better litigation positioning and more favorable results.