A California employer’s defense to an EEOC charge starts the day the notice of charge reaches its Respondent Portal. The federal regulation requires the agency to serve the charge, or a notice of it, within ten days after filing, and the agency usually asks for a written position statement next. In California the same charge is often dual filed with the Civil Rights Department (CRD). A charge is an allegation, not a finding, but what the employer submits now follows it into any later lawsuit.
Why is an EEOC charge in California often a CRD complaint too?
Because the two agencies have agreed to treat a charge filed with one as filed with the other where both laws apply. The EEOC calls state agencies like the CRD “Fair Employment Practices Agencies” (FEPAs). Its dual filing page explains that “If the charge is initially filed with EEOC and the charge is also covered by state or local law, EEOC dual files the charge with the state or local FEPA (meaning the FEPA will receive a copy of the charge), but ordinarily retains the charge for processing.”
Under the CRD’s worksharing agreement with the EEOC’s Los Angeles District Office for fiscal year 2022, each agency designates the other “as its agent for the purpose of receiving and drafting charges.” The agreement also says: “Within ten business days of the filing of the charge, each agency agrees that it will notify both the Charging Party and the Respondent of the dual-filed nature of each such charge it receives for initial processing.” As a rule, the agency that receives the charge investigates it.
The two laws don’t cover the same employers. Title VII applies to an employer that “has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year,” under 42 U.S.C. § 2000e(b). For most claims, California’s Fair Employment and Housing Act (FEHA) reaches employers regularly employing five or more people under Government Code section 12926, and the worksharing agreement notes the CRD’s jurisdiction over harassment claims against employers with one or more employees. A small employer can face the state claim even when the federal one fails.
The practical point: read the notice to see which agency is investigating and which laws the charge cites. I’d answer the federal charge as if the state claims were in it too, because the facts are the same and a later FEHA lawsuit will use whatever the company said.
What will the EEOC ask the company for?
Usually a position statement, and often more. The rule is 29 C.F.R. § 1601.14: “Within ten days after the filing of a charge in the appropriate Commission office, the Commission shall serve respondent the charge by digital transmission, by mail, or in person,” subject to a law-enforcement exception. The EEOC’s page for employers says the notice links to the Respondent Portal, where the company can view the charge and submit its response.
The same page lists what the investigator may request: a statement of position, a response to a Request for Information (RFI) for “personnel policies, Charging Party’s personnel files, the personnel files of other individuals and other relevant information,” an on-site visit, and witness interviews. On interviews, the EEOC’s page says the investigator “is allowed to conduct interviews of non-management level employees without the presence or permission of the employer.”
The agency’s investigative authority is broad. Section 1601.15 provides that the Commission “will accept any statement of position or evidence with respect to the allegations of the charge” that either side wants to submit, and it may require a fact-finding conference. The employer page adds that the EEOC “has the authority to subpoena” relevant information.
| Stage | Where the rule comes from | What the employer does |
|---|---|---|
| Notice of charge | 29 C.F.R. § 1601.14 | Log into the Respondent Portal, read the charge, calendar the response date |
| Mediation offer | EEOC mediation page | Decide whether to mediate before investing in the full response |
| Position statement and RFI | EEOC position statement guide | Submit a fact-based response and documents, keeping confidential material in separate attachments |
| Determination | § 1601.19, § 1601.24 | Prepare for a lawsuit after a no-cause finding, or for conciliation after a cause finding |
| Notice of right to sue | § 1601.28 | Treat it as the start of possible litigation, not the end of the matter |
How should a position statement be written?
As evidence, not as a brief, and with the knowledge that the employee will read it. The EEOC’s position statement guide says a position statement “should include specific, factual responses to every allegation of the charge,” and should “identify the specific documents and witnesses supporting its position.” It also warns: “If you submit only an advocacy statement, unsupported by documentary evidence, the EEOC may conclude that Respondent has no evidence to support its defense to the allegations of the charge.”
The audience is wider than the investigator. Under the EEOC’s position statement procedures, “The EEOC will provide the Respondent’s position statement and non-confidential attachments to Charging Parties upon request and provide them an opportunity to respond within 20 days,” and “The Charging Party’s response will not be provided to Respondent during the investigation.” The same page says a respondent “generally has 30 days” to submit the statement, and a request for more time “does not automatically extend the deadline for providing the position statement.”
Sensitive material goes in separate attachments. The guide tells employers to segregate items such as Social Security numbers, sensitive medical information other than the charging party’s, trade secrets, and unrelated personal data of witnesses and comparators, each labeled, with a justification.
My strongest advice here: write the statement as if it will be Exhibit A in the lawsuit, because it often is. Every factual statement should be one the decision-maker will repeat under oath. An early position statement that gives one reason for a termination and a deposition that gives another is the pretext argument the employee’s lawyer is looking for. Short and accurate beats long and aggressive.
Should the company agree to EEOC mediation?
Often it’s worth considering, and nothing is lost by trying. The EEOC’s mediation page says that shortly after a charge is filed, the agency may ask both sides whether they want to mediate, and “The decision to mediate is completely voluntary.” If either side declines, the charge is sent to an investigator. If the parties don’t settle, “the charge will be investigated like any other charge.” A signed agreement reached in mediation “is enforceable in court just like any other contract.”
The EEOC says the person attending for the employer should know the facts and “have the authority to settle the charge on behalf of the employer.” Before the agency issues its determination, 29 C.F.R. § 1601.20 also lets the agency encourage a negotiated settlement.
Mediation makes the most sense when the documents are mixed and a lawsuit would cost more to defend than a realistic settlement. It makes less sense when the record shows a legitimate reason and the employee’s demand is out of proportion. Either way, the decision should come after someone has read the personnel file, not before. And any settlement should release the state FEHA claims as well as the federal ones.
What happens after the EEOC investigates?
There are two main outcomes, and neither ends the dispute by itself. If the agency doesn’t find reasonable cause, 29 C.F.R. § 1601.19 requires it to issue a determination to the parties, and the rule says “This determination does not mean the claims in the charge have no merit.” The employee then receives notice of the right to sue in federal court.
If the agency finds reasonable cause, section 1601.24 says it “shall endeavor to eliminate such practice by informal methods of conference, conciliation and persuasion.” If conciliation fails, the EEOC’s employer page explains that the agency can sue the employer in federal court, and if it decides not to, the employee receives a notice of right to sue.
The employee doesn’t always wait for the investigation. Under section 1601.28, the employee can request a notice of right to sue in writing. The agency must issue it once a period set in the regulation has passed, and may issue it earlier if it certifies it can’t finish processing in time. Issuing the notice generally ends the agency’s processing of the charge. In California, a lawsuit that follows usually pleads FEHA claims alongside or instead of Title VII claims, and those state claims follow the CRD’s own right-to-sue process under Government Code section 12965.
What should an employer do the week the charge arrives?
Start here:
- Put a litigation hold on the charging party’s personnel file, the decision-makers’ emails and texts, payroll and attendance records, comparator files, and the policies in effect at the time.
- Calendar the response date in the Respondent Portal, check whether the charge was dual filed with the CRD, and check whether any employment practices liability (EPLI) policy requires notice of an agency charge.
- Identify the decision-makers and witnesses, and make sure no one takes action against the employee that could look like retaliation for filing the charge.
- Pull the documents at the center of the charge: the termination or discipline paperwork, prior warnings, the complaint the employee made, and any internal investigation file.
- Talk to a lawyer before submitting a position statement, agreeing to mediation, contacting the employee, or offering anything to settle.
The firm’s page on defending employment lawsuits in California covers the firm’s work for employers from agency charges through litigation.
EEOC charge questions from California employers
Do we have to respond if the charge has no merit?
In practice, yes. The EEOC’s guidance for employers says “You should submit a prompt response to the EEOC and provide the information requested, even if it is believed the charge does not have merit.” Its position statement guide adds that if the employer doesn’t respond, the agency may decide the charge on what it has or subpoena the information. A short, documented response costs far less than defending a cause finding.
Can the EEOC interview our employees without us there?
For some employees, yes. The EEOC’s employer page says a company representative usually may be present for interviews of management personnel, but the investigator may interview non-management employees “without the presence or permission of the employer.” Tell managers about the charge, remind everyone that retaliation is prohibited, and don’t coach witnesses. If witnesses were coached, expect it to surface in the interview notes.
Will the employee see our position statement?
Probably. Under the EEOC’s procedures, the agency gives the position statement and non-confidential attachments to the charging party on request and lets them respond. The employer doesn’t get that response during the investigation. Anything confidential belongs in separately labeled attachments with a justification, because the agency won’t accept blanket confidentiality claims.
Is a no-cause determination the end of it?
No. The regulation says a no-cause determination “does not mean the claims in the charge have no merit,” and it comes with notice of the employee’s right to sue. A lawsuit can still follow. Keep the litigation hold in place and treat the determination as a pause, not a win.
If an EEOC charge just landed in your portal
If a current or former employee has filed an EEOC charge against your company, the position statement you submit in the next few weeks will likely be read again in any lawsuit that follows. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving discrimination and retaliation charges. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The regulations are 29 C.F.R. § 1601.14, § 1601.15, § 1601.19, § 1601.20, § 1601.24, and § 1601.28. The statutes are 42 U.S.C. § 2000e and Government Code sections 12926 and 12965. The EEOC’s own guidance is What You Can Expect After a Charge is Filed, Effective Position Statements, Questions and Answers for Respondents on EEOC’s Position Statement Procedures, Mediation, and Fair Employment Practices Agencies and Dual Filing. The agreement is the CRD and EEOC Worksharing Agreement for Fiscal Year 2022.
This post is general information about California and federal employment law as of November 5, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.