A position statement is the first document you write in a case that may last three years — and under the EEOC's procedures, the charging party can ask for a copy of it. It becomes your official version of events, the baseline every later document gets compared against. These are the eight mistakes employment attorneys look for first.
Why it matters: EEOC guidance asks employers to place sensitive material in separate, clearly labeled attachments rather than inside the statement itself — categories generally include sensitive medical information, confidential commercial or financial information, trade secrets, personal identifying information of other employees, and references to charges filed by others. Sensitive facts written into the body of the statement may be disclosed along with it.
Check: Medical details, other employees' personal information, and commercially sensitive material are in labeled attachments, with the statement referring to them rather than reproducing them.
Why it matters: Discrimination and retaliation cases frequently turn on pretext — whether the employer's explanation holds up. A position statement that says "restructuring" while the termination letter says "performance" and the unemployment response says "attendance" supplies that argument in your own words. Shifting explanations are among the most commonly cited evidence of pretext.
Check: The reason given matches the termination letter, personnel file, PIP or discipline records, unemployment filing, and what the decision-maker will say if deposed.
Why it matters: Sentences written to sound reasonable often read as concessions later: "the manager could have handled the conversation better," "there were some communication issues on both sides," "we may not have followed our usual process here." Each of those can be quoted back without the surrounding context. Characterizing the charging party's motives ("she filed this because she was upset about the schedule") tends to read as animus rather than explanation.
Check: Every sentence states a fact you can support with a document or a witness. Opinions about the employee's character or motives are removed.
Why it matters: A general denial invites the investigator to credit the detailed account — the charging party's. Allegations that go unaddressed may be treated as unrebutted. At the same time, volunteering facts far outside the charge can expand the investigation's scope, and the agency does sometimes broaden inquiries based on what it learns.
Check: Each factual allegation gets a direct, documented response. The statement answers what was asked without narrating unrelated history.
Why it matters: Attachments are read, not skimmed. Producing a performance file whose reviews are uniformly positive alongside a statement about long-standing performance problems damages credibility more than producing nothing. The same applies to policies you cite: if you rely on a progressive-discipline policy, the file should show the steps.
Check: Every attachment has been read against the narrative, and any document that appears to contradict it is explained in the statement rather than left to be discovered.
Why it matters: If the charge alleges different treatment, the statement typically has to address how others in similar situations were handled. Describing a comparator as "not similarly situated" while your own records show the same role, supervisor, and conduct is a distinction the investigator can check. Selective comparison — naming employees who support your position and omitting the obvious counterexample — is usually noticed.
Check: Comparator claims are verified against actual records, and known unfavorable comparisons are addressed rather than ignored.
Why it matters: Filing a charge is protected activity. Actions taken after the charge arrives — discipline, schedule changes, a sudden performance review, restricting access, or a statement hinting the employee is no longer trusted — can support a separate retaliation claim that outlives the original allegation. Retaliation is consistently among the most frequently filed charge types. Statements that reveal who reported what to whom can also expose witnesses.
Check: No employment action was taken because of the charge, the statement doesn't disparage the charging party, and witness identities are handled carefully.
Why it matters: The request usually carries a deadline — commonly around 30 days — and extensions are typically available if requested before it passes rather than after. Missing it without contact can lead the investigator to proceed on the information available. Separately, pasting in an internal investigation memo prepared by or at the direction of counsel can raise questions about waiving privilege over material you would rather keep protected.
Check: The deadline is calendared (with any extension requested in writing), facts are verified with the people who witnessed them, and privileged material is not attached without counsel's input.
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Under the EEOC's nationwide procedures, the charging party may request a copy of the position statement and non-confidential attachments during the investigation. Their response is generally not shared back with you. Write every sentence assuming the employee and their attorney will read it.
The request usually sets a deadline, commonly around 30 days, though it varies. Extensions are often available if you ask before the date passes. Missing it without contact can lead the investigator to proceed on the information available — typically the charging party's account.
Yes. It is commonly used to test whether your explanation stayed consistent. A reason that differs from the termination letter or a manager's later testimony is frequently offered as evidence of pretext.
For anything beyond a routine charge, involving employment counsel is generally advisable — the document sets your official narrative and is difficult to walk back. Many employers draft internally and have counsel review before filing.
This guide is general information, not legal advice, and reading it does not create an attorney-client relationship. Employment law varies by state and changes frequently; consult a licensed employment attorney about your specific situation. DefensibleHR.ai scan results are AI-generated starting points for review, not a substitute for counsel.