Effective Position Statements
Once an individual has filed a Charge of Discrimination (charge) against a Respondent for alleged violations of anti-discrimination laws, the Respondent is notified of the charge and, in most cases, is asked to submit information regarding the allegations, including a formal, written response called a “position statement.” A solid position statement is critical to a Respondent’s defense of the allegations in a charge. It is the Respondent's opportunity to tell their side of the story, point out relevant case law, and potentially convince the Commission on Human Rights (CHR) that they did not violate any anti-discrimination laws.
When deciding what information to include in a position statement, there is no “right way” to do it. However, an effective position statement is “clear, concise, complete and responsive.” It should focus on the relevant facts, respond to each allegation in the charge, and identify specific documents, witness, or any other evidence supporting the Respondent’s version of the facts and/or any other facts and documentary evidence deemed relevant. A position statement that simply denies the allegation(s) in the charge without providing a position or supporting information is not sufficient. In fact, it may be concluded that the Respondent has no evidence to support its defense if it submits only an advocacy statement without documentation. When deciding what information to include in a position statement, Respondents should carefully assess the allegations in the case and the relevant information needed to respond on a case-by-case basis.
Generally, a position statement should:
- Address each alleged discriminatory act, your position regarding it and include copies of documents supporting your position and/or version of the events. Then affirmatively show non-discrimination, if possible. For example, in a pregnancy discrimination case, if another female has been pregnant, given birth, and successfully returned to work under the same supervisor, reference it. In an age discrimination case, if you can show that other employees who are the same age or older than the Charging Party work under the same manager without issue, that should be included in your position statement. Though you likely won’t be able to do this in every case, when you can, don’t miss the opportunity to include what could be a critical part of the defense.
- Identify the facts and circumstances that gave rise to the alleged adverse action. Explain how the Charging Party’s action affected the Respondent, and/or why the Charging Party’s behavior was unacceptable.
- Provide a description of the primary nature of the Respondent’s business; include the Respondent’s legal name and address, the name, address, title, telephone number and email address of the person responsible for responding to the charge; the number of employees, if applicable, and/or; the number of units, if applicable. A staffing or organizational chart is also helpful to the investigation.
- Explain any practices, policies or procedures applicable to the allegations in the charge and produce a copy of the same. Explain how the policies are enforced and how individuals become aware of the policies. Include a copy of the Charging Party’s signed acknowledgement, confirming he/she has received, read, and understood the policies/procedures, if applicable.
- Include statements or affidavits from witnesses with direct knowledge of the alleged events and/or from the alleged harasser responding to the Charging Party’s allegations. It should also include any and all supporting documentation.
- Identify any individuals other than the Charging Party who have been similarly affected by these practices, policies or procedures; describe the circumstances in which the practices policies, or procedures have been applied. Explain why individuals who were in a similar situation to the Charging Party were not similarly affected. If the Charging Party specifies other individuals who were allegedly similarly situated and treated better, provide information that discredits that contention. Explain why Charging Party’s comparators may not be similarly situated. If the situations are dissimilar in any way, make sure you point out the differences.
- Identify official(s) who made decisions or took action(s) relating to the matter(s) raised in the charge. Make sure the decision-makers review the charge and position statement to ensure it is complete and accurate, comparing the response made to the documentation you will be providing. Remind the decision makers that the position statement will become a public record, is discoverable and they may have to testify to its accuracy in subsequent litigation. Any inconsistencies in the reasons given for the adverse action(s) will damage the Respondent’s credibility. Therefore, it is important to make sure the reasons or justifications are documented and agreed upon by all decision makers. Inconsistencies, may be seen as pretext for some discriminatory action. Even slight variations can have devastating consequences.
- Be specific about date(s), action(s) and location(s) applicable to the case. These details can be critical to the overall story.
- If the Charging Party was involved in other proceedings, like unemployment or worker’s compensation, include that in the position statement and submit any reports or transcriptions of the proceedings. They can uncover inconsistent positions taken by the Charging Party regarding the adverse action(s). Consider whether you can use other defenses such as timeliness, constructive discharge, same actor inference, offers of reinstatement, or after acquired evidence. This is one area in particular where assistance of counsel is key —lawyers are trained to spot and properly apply these defenses.
- Provide a proposal for resolution if you believe the matter can be resolved.
- A big recitation of the law is probably not necessary. Indeed, it may distract from the rest of the position statement. Ultimately, adding pages to the position statement is bad. Write concisely, in active voice, and in plain English.
- Have counsel review the position statement before it goes out. Counsel can add strong legal arguments and defenses, and can generally confirm that the position statement is legally sound before you file it. Remember, once you file it, you can’t get it back!
- Consider skipping the position statement altogether by participating in the CHR Mediation Program. The success rate is high, and you may end up saving money in the end.
At the end of the day, an effective position statement is thorough, clear, concise, consistent, complete and responsive. A position statement that simply denies the allegations without providing your position or supporting information does not defend the Respondent properly. The position statement is the Respondent’s opportunity to explain why the allegations are false.
Request for Extension
Generally position statements are due 20 days after receipt of the Notice of the Charge. All position statements should be received by the deadline. However, a brief extension of time to submit a position statement may be allowed in certain cases. Any requests for an extension should be submitted in writing, as early as possible, prior to the due date, and should indicate the specific amount of additional time being requested. Submitting the written request for an extension does not automatically relieve the Respondent of complying with the deadline.
If the Respondent does not submit a position statement or response to the Request for Information, the CHR may subpoena specific information or documents and/or proceed directly to a determination on the merits of the charge based on the information provided by the Charging Party.
Respondents should separate confidential information into a separate attachment; do not attach confidential documents to the position statement. Confidential information should be labeled, such as “Sensitive Medical Information,” “Confidential Commercial or Financial Information,” “Non-relevant personally identifiable information of witnesses,” “other charges or charging parties,” or “Trade Secret Information” as applicable, and there should be an accompanying explanation as to why the documents are deemed confidential. Medical information about the Charging Party shall not be deemed sensitive or confidential medical information in relation to the investigation. Please note that just because the documents are marked as confidential does not mean that the CHR will accept blanket or unsupported assertions of confidentiality.
The position statement will be discussed with the Charging Party and the Charging Party will have an opportunity to provide a rebuttal to the information provided by the Respondent. However, the Respondent will not be provided with a copy of the rebuttal information.