Responding to an EEOC Charge: The First 72 Hours

Day one

• Read the charge twice before reacting. Note exactly who is named, which bases are checked (race, sex, age, disability, retaliation, and so on), and the date range alleged. The narrative is often thin — the checked boxes and dates tell you the shape of the claim. Two threshold defenses are cheapest to spot now: whether the charge was timely filed (the filing window varies by whether a state or local fair-employment agency exists, so confirm which applies) and whether every entity you would expect was actually named as a respondent.
• Calendar every deadline on the notice. The position-statement due date (often around 30 days), any mediation election window, and any request for information. Set internal working-backward dates the same day; extension requests are common, but never assume one.
• Issue a litigation hold. The duty to preserve has attached. Cover the charging party’s personnel records, the decision-makers’ email and messages (including texts and Teams/Slack), relevant policies as they existed at the time, and any video or badge data before it cycles. The full hold checklist is here.
• Notify your EPL carrier. Many employment practices liability policies treat an administrative charge as a “claim,” and late notice is one of the few ways to lose coverage you already paid for. Loop in your broker the same day.
• Lock down direct contact. No one — especially not the named manager — reaches out to the charging party about the charge. If the person still works for you, normal work interactions continue, exactly as before.
• Brief the management chain on retaliation. An adverse action while a charge is pending creates a second claim, and retaliation claims are often stronger in front of a jury than the underlying charge. Scheduling, assignments, and reviews for the charging party should be defensible and documented.

Before the week ends

• Map the decision-makers. Who decided, who recommended, who approved, who knew what when. This map drives the privilege plan, the interview order, and eventually the witness list — build it early, while memories are fresh.
• Pull the core documents and freeze them. Personnel file, the handbook version in effect at the relevant time, performance documentation, the policy at issue, and the communications that led to the decision. Work from copies; the originals stay untouched.
• Identify comparators before the agency asks. Who else broke the same rule, and what happened to them? You want to learn the uncomfortable answer now, from your own records, not later from a determination letter.
• Decide who investigates — deliberately. HR fact-gathering is usually discoverable; a counsel-directed investigation can carry privilege but comes with its own tradeoffs. Choose based on how serious this looks, not on habit.
• Take a real position on mediation. Agency mediation is voluntary, early, and cheap relative to what follows. It is not a sign of weakness; for some charges it is plainly the right business outcome. Decide with the business, not by default.
• Scan for the claims riding along. Charges rarely travel alone. Check for wage-and-hour exposure, leave-law issues, and whether the allegation describes a practice (a policy, a schedule, a pay structure) rather than one decision — that is how single charges become collective problems.
• Set the need-to-know circle. Decide who inside the company is told, what references will say, and who speaks if anyone calls. Small circle, consistent answers.
• Outline the position statement strategy now. Theme, facts, exhibits — agreed before drafting starts, with time for the people involved to review for accuracy. Accuracy matters more than advocacy at this stage.