A driver filed an EEOC charge: deadlines, the position statement, and mediation for a small fleet

What an EEOC charge is, and which companies it can reach

An EEOC charge is a signed statement, made under oath, that an employer discriminated against, harassed, or retaliated against an applicant or employee. It starts the EEOC’s process. It is not a finding, and the EEOC may not make a charge public (42 U.S.C. 2000e-5(b)).

Coverage depends on headcount. The laws on race, color, religion, sex including pregnancy, national origin, disability, and genetic information reach an employer with 15 or more employees. The Pregnant Workers Fairness Act has the same 15-employee line. Age discrimination starts at 20 employees, and the Equal Pay Act reaches virtually every employer. The count includes anyone who worked for you for at least 20 calendar weeks this year or last, and part-time, seasonal, and temporary staff count the same as full-time drivers.

Below those lines the laws the EEOC enforces do not apply, but a state law may. California’s law, as one example, covers discrimination at employers with 5 or more employees and harassment at every workplace. A small fleet that is too small for the EEOC can still receive a state complaint. A charge can name a discharge or other discipline, and firing a NEMT driver covers that decision from the employer’s side.

How soon does the EEOC tell you, and where do you find the charge?

The EEOC serves notice within 10 days of the filing (29 CFR 1601.14). The notice, often called EEOC Form 131, goes by email to the address the EEOC has for your company, or by mail if it has none. It carries the charge number and a password that opens the charge in the EEOC’s Respondent Portal. Each charge has its own password, so keep it where the person responsible can find it.

In the portal you can read the charge, answer a mediation invitation, upload your position statement and your answers to information requests, ask for an extension, and name a lawyer as your representative. If nobody logs in within 10 days, the local office tries to serve you again. The EEOC’s own Q&A raises the risk of a notice lost to a bad address or a spam filter, and asks employers to give their local office an email address for future charges, so choose one that someone reads.

In the first days:

1. Calendar every date in the notice. The position statement and any request for information each have their own.
2. Check whether the charge is on time. See the next section.
3. Stop deleting. Records tied to the charge have to be kept, as covered under “What to hold on to” below.
4. Tell your insurer if you carry employment practices coverage. Policies of that type respond to claims made during the policy term, and the policy’s own wording decides what counts as a claim. The EPLI glossary entry explains the coverage.
5. Choose one person to handle every EEOC contact. Do not discuss the charge with the driver in the hallway or over dispatch chat.

Was the charge filed on time?

A charge generally has to be filed within 180 calendar days of the discriminatory act, and within 300 days if a state or local agency enforces a law against the same kind of discrimination. For age claims, only a state law and a state agency extend the period to 300 days. In a harassment claim the count runs from the last incident, although the EEOC looks at earlier ones too. If a deadline falls on a weekend or holiday, it moves to the next business day.

As an example, say a driver was fired on March 1. A charge on this ground is timely through August 28 of that year in a state without an enforcing agency, or the next business day if that date lands on a weekend or holiday. An untimely charge must be dismissed (29 CFR 1601.18), so a late charge is worth pointing out in the position statement. Each separate act has its own clock: a demotion a year before the firing is not covered by a charge filed after the firing.

When is the position statement due?

Generally 30 days after the EEOC asks for it, and the request gives the exact date. If you need longer, ask the investigator as early as you can, explain why, and say how much time you want. Confirm the agreed date in writing. A request does not by itself extend the deadline, and the EEOC grants brief extensions only when you show you are working on the answer, for example by sending part of the information.

Do not skip it. If no position statement or answer to an information request comes in, the EEOC can decide the charge on what it already has or subpoena the information. A person served with a subpoena who does not intend to comply must petition to revoke or modify it within five days, not counting weekends and federal holidays, after service (29 CFR 1601.16).

What goes into a position statement?

A position statement answers every allegation in the charge with specific facts and attaches the documents behind them. The EEOC says a statement that only denies the allegations is not enough, and that a statement with no documents behind it may lead the agency to conclude you have no evidence for your defense. Include:

• a short description of the company: legal name, address, the contact person, what the business does, and how many employees it has;
• the policies that apply, such as attendance, discipline, or accommodation;
• the dates, actions, and places involved, with the people who made each decision;
• how other employees in a similar situation were treated, and why any difference exists;
• internal investigation notes or grievance records about the incident;
• any defense you rely on, whether legal or factual, and whether you would consider resolving the charge.

Here is an example, not a real case. A driver fired after three late pickups says a white driver with a similar record kept his job. The company’s statement would attach the written attendance policy, the three dated write-ups, the trip records showing each late arrival, the name of the dispatcher and owner who made the decision, and the records of every driver with comparable lateness and what happened to each. If the facts support it, the statement would also show that one manager applied the same policy to each of them.

Put anything sensitive in separate attachments, labeled by type: Social Security numbers, other employees’ medical information, confidential financial or commercial information, trade secrets, other employees’ personal details such as home addresses, and any reference to other charges. Medical information about the driver who filed is not treated as confidential in this process. An officer or other authorized person should sign the statement. Once you upload it to the portal, you cannot retract it.

The EEOC may give the statement and its non-confidential attachments to the driver, who then has 20 days to respond. You will not see that response while the investigation is open, but the investigator may come back to you with questions it raises.

Should a small company mediate?

Often, yes. If the charge is eligible, the EEOC invites both sides, with the company’s invitation appearing in the portal, and the choice is voluntary. If either side declines, an investigator takes the charge. If both agree, a trained mediator runs a session that usually lasts 3 to 4 hours, at no cost to either party. The mediator does not decide who is right.

The EEOC reports that mediated charges resolve in under 3 months on average, while an investigation can take 10 months or longer. Its page on the charge process gives about 11 months as the average to investigate and resolve a charge in 2023. A signed written agreement from mediation can be enforced in court like any other contract. Everyone signs a confidentiality agreement, and information disclosed in mediation is not shared with other EEOC investigative or legal staff. If mediation fails, the charge is investigated as usual.

Send someone who knows the facts and has authority to settle. A lawyer is optional. Before the session, decide what you would pay, what you would change in policy, and whether the driver could return.

What the EEOC does if the charge is not settled

The investigator evaluates what both sides send and may ask you for:

• Policies and files. A request for information can cover your personnel policies, the driver’s personnel file, and the files of other employees.
• A site visit. The EEOC may visit and view or copy documents on site instead of sending a written request.
• Interviews. A company representative usually may sit in on interviews with managers, but the investigator may interview non-management employees without your presence or permission. Drivers and other staff below management fall into that group.
• A fact-finding conference. The agency can call the parties together to narrow the issues and look for a settlement.

Without a settlement, an investigation ends in a decision. If the EEOC cannot find reasonable cause, it issues a Dismissal and Notice of Rights, you receive a copy, and the driver has 90 days from receipt to sue. If it finds reasonable cause, both sides get a Letter of Determination inviting conciliation, the EEOC’s informal process for settling. If conciliation fails, the EEOC can sue, which it does for a small share of charges. When it does not, the driver gets a notice of right to sue.

Can the driver sue before the EEOC finishes?

Yes. A driver who asks for a notice of right to sue more than 180 days after filing gets one, because the EEOC has to issue it. Before day 180, the EEOC gives one only if it certifies that it cannot finish by then. Issuing the notice generally ends the EEOC’s processing of the charge (29 CFR 1601.28), and the driver then has 90 days to file in court. An age discrimination plaintiff needs no notice and can sue 60 days after filing the charge.

The notice goes to all parties, so you receive a copy, and a charge that looks quiet for six months can end with a lawsuit filed in the 90 days after it.

Damages for intentional discrimination under the main laws can include compensatory and punitive damages, capped at $50,000 per complaining party for an employer with 15 to 100 employees (42 U.S.C. 1981a), as well as back pay, attorney’s fees, expert fees, and court costs. For intentional age discrimination, the plaintiff may get liquidated damages equal to back pay instead.

Retaliation while the charge is open

Retaliating against anyone who files a charge or takes part in the investigation is its own violation (42 U.S.C. 2000e-3(a)). Participating in a charge is protected under all circumstances. The EEOC lists reprimands, a less desirable assignment, closer scrutiny, and schedule changes that make work harder as acts that can amount to retaliation, depending on the facts, and it includes reporting someone’s immigration status to authorities.

In a van company the risk can show up in dispatch: the charging driver’s runs, hours, and shift starts. Keep assigning work by the same rules you applied before the charge, and have a second person review any discipline of the driver, so each decision traces to a written policy. Protected activity does not shield a driver from discipline for reasons unrelated to it, but a decision made after the charge needs a clear record to show that. The other laws that protect drivers who raise problems are in protections for NEMT drivers who report concerns.

If the driver also filed for unemployment, give the state and the EEOC the same reason for the separation. The unemployment process is covered in contesting a former driver’s claim.

What to hold on to

Keep every personnel record tied to the charging driver and to drivers in similar positions until the charge is finally resolved (29 CFR 1602.14). The litigation hold entry explains where that period ends and how to stop automatic deletion, and how long to keep employee records covers the routine periods.

A van company’s position statement will lean on records beyond the personnel file, so hold those too: trip logs, timecards, dispatch messages, and write-ups that show how you treated the charging driver and comparable drivers. The guide to firing a NEMT driver lists the records to collect at a separation, and harassment prevention training is where to look if the charge alleges harassment.

Pulling the facts together in HealthRide

When a charge turns on attendance, hours, or a driver’s credentials, the facts are in the shift and trip records. Timecards in reports show when a driver worked and for how long, for any dates you choose. Credential expiration dates are tracked, with reminders sent before they lapse.