EEOC and The Burden of Proof

Many employees file a discrimination complaint with the EEOC believing that they can simply tell the investigator what happened and since it is the truth, their claims will be investigated and their employer will be held accountable. 

However, it’s important to remember that the EEOC is an objective, third-party investigator. They will not act as an advisor or an advocate unless and until you convince the investigator your claims are valid and receive a ‘reasonable cause’ finding. One way to think about it is the EEOC will help you, but only after you’ve convinced them your claims are valid by providing evidence and a persuasive argument. 

How do you convince them? By satisfying the burden of proof, which the EEOC states includes not one, but two burdens:

• Production of Evidence

• Burden of Persuasion

With the goal of helping you do just that, we’ll use this post to explain what it means to satisfy each of these burdens and what happens if you fail to do so.  

Production of Evidence

Technically you and the employer will share the burden of producing / providing evidence, but you own the burden first. This means you must satisfy the following four key elements before the EEOC will move forward with the investigation:

1. You are part of a protected class

2. You were qualified for or meeting expectations for the role | promotion

3. You suffered harm: rejection | termination | promotion denial | lower compensation

4. Others outside of your protected class were treated more favorably

   
   

If you are unable to satisfy your burden of proof, the EEOC will rule in the employer's favor even if the employer chooses not to respond to your complaint or provide any evidence. This is because the EEOC is not going to demand records from your employer to prove the claims you failed to demonstrate. Instead they will use the information currently available (or lack of evidence demonstrating discrimination) and close out your claims as ‘no reasonable cause.’

However, even in situations where your employer does respond, you should expect that the employer will only provide the evidence that supports their version of events and conveniently ‘forget’ any evidence that does not. 

Additionally, having evidence is equally necessary if you’re hoping to retain counsel (on contingency). A lawyer will not take your case based on your claims alone if you have no evidence. 

Burden of Persuasion

The burden of persuasion is the burden most often missed by employees filing without an attorney. Many employees file with the EEOC believing they can just dump a mountain of evidence on the investigator and the investigator will carefully read through every document, connect the dots and arrive at the conclusion that your discrimination claims are valid. However, the EEOC explicitly states that as the person filing, you must persuade the investigator that you’ve been discriminated against. 

Now in fairness, most employees don’t realize this is a requirement and even if they do, they have no idea where to begin. As a result they fail to write an effective, well-supported argument that connects the claims they’ve made to the evidence they’ve provided and ultimately lose their case. 

Adding to the reasons employees often lose is the fact that employers and the attorneys who represent them are particularly skilled at making persuasive arguments that are clear, direct and well written. While it is not required for employers to be persuasive in their position statements, you should expect that they will be and in turn, make every effort to be persuasive in yours. One tactic for doing this is to use the format the employer uses in their position statement to format your rebuttals. Reference and organize evidence in a similar manner, frame your arguments to directly argue against their claims in the same format. 

If possible, I recommend having your own legal representation to support you with this burden, but if you’re unable to find one, just remember not even a well-formed argument can change the facts. 

Not Sure Where To Begin?

It’s understandable if you find this task anxiety inducing, because most employees have no idea where or how to begin. That is why JustiProof created an app that walks you through 5 steps of building an effective complaint. I have been in your position and wished I had more guidance when I was, so I added everything I learned during my own fight to JustiProof in order to help others navigate this process with less anxiety and confusion. 

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