Most employers treat an EEOC charge as the beginning of a legal problem. It is not. It is the moment a problem that already existed becomes visible. The documentation in the personnel file on the day the charge arrives is the record you will defend for the next two to four years. That record was written before the charge. You cannot change it now.
Day one: the litigation hold
When a charge is received, a litigation hold is required. Every document, email, file, and record related to the charging party, their manager, and the employment decisions at issue must be preserved. Deleting, modifying, or failing to preserve relevant records is spoliation of evidence, a separate problem that can lead to sanctions and adverse inferences regardless of the merits of the underlying claim.
The position statement: the most consequential document you will produce
The EEOC typically invites the employer to respond with a written position statement explaining its version of events. Whatever the company says in that document, it is committed to. A statement that explains gaps in documentation can point the agency to gaps it did not know existed. Many small companies write a position statement that says too much, explains the wrong things, or fills documentation gaps with narrative. All three make the agency's job easier. The position statement should be prepared with employment counsel.
In FY2025 the EEOC recovered $660 million for 17,680 workers, the third-highest total in its history, including a record $528 million through its pre-litigation process. It filed 94 merits lawsuits and reported a 96.5% favorable resolution rate. The agency sues on a very small share of charges, so the cases it takes to court are ones it has already assessed as strong.
EEOC FY2025 performance results; EEOC Office of General Counsel FY2025 Annual ReportWhat the first 90 days require
A full audit of the documentation record before the position statement is written. What exists in the file. What is absent. What the gaps reveal about how performance, discipline, or the termination was handled. Whether the stated reason is supported by a consistent paper trail, or reads as an explanation assembled afterward.
A review of the investigation file if the charge arises from a complaint the company previously investigated. How the investigation was conducted, by whom, with what training, and what was documented.
A charge-by-charge assessment. What the charging party must show. What the employer must show in response. Where the record is strong and where it is exposed.
Mediation vs. conciliation
Mediation is offered early, often before an investigation begins, and is voluntary for both parties. Conciliation happens after the EEOC has investigated and found reasonable cause to believe discrimination occurred. Conciliation is not mediation; it is a negotiation between the agency and the employer over remedies.
What changed in 2025 and 2026
EEOC priorities have shifted. The agency regained a quorum in late 2025, stepped back from disparate-impact enforcement, began requiring a Commission vote before new lawsuits in January 2026, and rescinded its 2024 harassment guidance. None of that changes the basic point: the employer's record decides most charges.