An argument that I see from time to time is the contention by employers that position statements submitted to the EEOC are not admissible at trial. Often, inartfully drafted position statements contain evidence supporting a plaintiff’s claim of discrimination or retaliation.

The two primary bases for this argument is that position statement is inadmissible because it constitutes a settlement communication under Rule 408 of the Federal Rules of Evidence or it is hearsay. In an order issued today, Judge Donald, of the W.D. of Tenn., rejected these arguments. Order Denying Mot in Limine

In a short, to-the-point order, Judge Donald addressed the specifc position statement at issue and held that the position statement did not constitute a settlement communication under Fed. R. Evid. 408.

In addition, addressing the hearsay challenge, Judge Donald held that “position statements cannot be excluded as hearsay as an ‘employer’s position statement in an EEOC proceeding may be admissible to the extent it constitutes an admission, or to show the employer has given inconsistent statements in justifying its challenged decision, which may tend to prove that its stated reasons are pretexts.” (Order at 1-2).

Notably, a position statement submitted by an employer is generally not considered hearsay, but instead is considered an admission by a party opponent, which is admissble at trial under Fed. R. Evid. 801(d)(2)(A) because it is the party’s own statement or Fed. R. Evid. 801(d)(2)(D) because it is a statement by the party’s agent, e.g., attorney. See, e.g., Mugavero v. Arms Acres, Inc., 2009 WL 1904548, *4 (S.D. N.Y. July 1, 2009).