Policy
What the Position Statement Has to Show About the AI Round
An EEOC charge over an AI-skills round is answered out of the requisition file, not out of memory. When the EEOC requests a position statement, it wants every allegation answered with facts and documents, generally within 30 days. Five things have to already exist: the job analysis behind the AI requirement, the exercise and rubric as candidates received them, every candidate's scored record for that requisition, the stated reason the person who filed was rejected, and evidence the same round ran for everyone at that stage.
The takeThirty days is enough time to assemble a file and nowhere near enough to build one. So alongside the round itself, a charge tests whether anybody wrote anything down while the round was running. The answer has a second reader: the position statement goes to the person who filed, on request. A hiring team that writes every rejection reason as though the rejected candidate will read it has already done most of the work this process asks for.
Where Olive fits
Open a role and see what the work shows
A charge asks what the requisition file held on the day of the decision. Olive's report is six findings written or edited by a person, each anchored to a timestamped excerpt from the session, exported with the rubric, scorer and item-bank versions that produced it, and granted to the candidate in the same form the employer reads.
Assess your shortlistWhat arrives after the charge, and on what clock?
Notice comes first. The EEOC notifies the employer within 10 days of the filing 3. The employer may then be asked for a position statement 3, and a respondent generally has 30 days to gather the information and submit the statement with its attachments 1.
A request for information is the other thing a respondent may be asked to answer, covering personnel policies, the charging party's personnel files, and the files of other individuals 3.
The position statement is not a letter. The EEOC's guide for respondents asks for specific, factual responses to every allegation of the charge, plus any other facts the employer thinks relevant, and asks for all documentary evidence supporting the response or any asserted defense 2.
The next part changes who reads the statement.
On request, the EEOC releases the position statement and its non-confidential attachments to the person who filed, and gives them 20 days to respond 1. The charging party's reply is not provided back to the employer during the investigation 1.
So the document can have two readers: the investigator and the person who filed.
Confidential material is segregated rather than omitted. Sensitive medical information, Social Security numbers, confidential commercial or financial information, trade secrets and non-relevant personal information about third parties go into separately labeled attachments, and the statement refers to the sensitive medical and the confidential commercial or financial material without identifying it 2.
Dual filing happens without anybody asking for it. A charge filed with a state or local fair employment practices agency that has a worksharing agreement is dual filed with the EEOC when a law the EEOC enforces covers it. A charge filed with the EEOC is dual filed with the agency when state or local law also covers it 9.
Two agencies can then hold the same round.
Which parts of the requisition file does the response rest on?
Five documents, and all five had to exist before the charge did. The job analysis behind the AI requirement. The exercise and rubric exactly as candidates received them. Every candidate's scored record for that requisition. The stated reason the person who filed was rejected. And whatever shows the same procedure ran for everyone who reached that stage.
The job analysis records why this role needs the AI skill at all, and it carries the most weight when it predates the posting. A requirement that first appears in the job description has no history behind it.
The exercise and the rubric are wanted as artifacts, not as descriptions. Produce the brief candidates opened, the scale the reviewer used, and the anchors that told the reviewer what each level looked like.
A rubric rebuilt for the response is a different document from the one that ran.
Keep every candidate's record ready, not only the charging party's, because comparison is the whole exercise. A request for information may ask for the personnel files of other individuals 3. If a reviewer read a model-written summary of a session before scoring it, the summary is part of that record too.
The stated decision reason is where thin files fail. When the only artifact is a status change in the applicant tracking system, the reason has to be composed inside the 30 days, which is the problem.
What you owe a candidate the AI screened out is a different question with the same answer: a reason that existed at the time.
Retention is set by regulation rather than by preference. Under federal regulation, personnel records are preserved for one year from the making of the record or the personnel action, whichever is later 4. Once a charge is filed, the employer must preserve all personnel records relevant to it until final disposition.
Before a charge makes it urgent, settle what to keep from an AI-assisted hiring decision, and for how long.
Know the selection rates for that round before anyone asks
Selection rates for that round may be computed during the investigation, and the investigator should not be the first to compute them. The Uniform Guidelines ask each user to maintain and have available records disclosing the impact its tests and other selection procedures have on employment opportunities by identifiable race, sex or ethnic group 5. The AI-skills round is one of those procedures.
The 1978 regulation also names the categories the records are kept by: sex, and Black, American Indian including Alaskan Native, Asian including Pacific Islander, Hispanic, white other than Hispanic, and totals 5.
Section 15 adds the second half. Where a total selection process has an adverse impact, documentation of validity evidence should be maintained for each component of that process that has an adverse impact. Users with 100 or fewer employees may satisfy the section with a simplified record 6.
The four-fifths rule is where the arithmetic lands, and it is not a pass mark. A selection rate below 80% of the highest group's rate is generally regarded by federal enforcement agencies as evidence of adverse impact 5.
The same rule adds that smaller differences may still be adverse impact where they are significant in both statistical and practical terms 5.
Compute the rate gate by gate, because the total hides the bad gate.
The exercise is a selection procedure, whoever built it
An AI exercise that a decision rested on is a selection procedure, because the definition never turned on formality. What counts as a selection procedure, in the 1978 Guidelines, is any measure, combination of measures, or procedure used as a basis for any employment decision 7. Coverage runs through the full range of assessment techniques, out to informal or casual interviews and unscored application forms. A twenty-minute AI exercise sits inside that language.
Being new, unscored, or run by a single manager moves nothing outside the definition.
What puts a step inside it is that a decision rested on the step, whatever the hiring team called the round at the time. When an informal AI exercise becomes a test you have to validate is the same question with the clock off; a charge turns the clock on.
The vendor question has to be answered in the file as well. In technical assistance issued in May 2023 and removed from eeoc.gov in late January 2025, the EEOC said an employer administering a selection procedure may be responsible under Title VII even where a vendor developed the test 8.
The same answer said an employer may be responsible for the acts of vendors given authority to act on its behalf 8.
Cite that technical assistance as the agency's 2023 reading, never as current guidance.
The vendor's own documentation belongs in the file whatever the status of that guidance, and the evidence an assessment vendor owes you is far easier to collect before a charge than inside the 30 days.
If a model did any of the scoring, a factual response says so and says where. Whether a model grading the take-homes counts as an automated decision depends on where the role was hired, which is a question for counsel before the statement goes out.
Freeze the requisition file, and resist improving it
Keep every record as it stood on the day of the decision.Once a charge is filed, the employer must preserve all personnel records relevant to the charge until final disposition 4. Final disposition means the expiration of the period for filing a district court action or the end of any litigation.
Deleting is the visible failure. Composing is the quiet one.
A rationale written in week three of the response is still a rationale written in week three. It can be entirely true and still carry little weight, because nothing in the file dates it to the decision.
So the strongest position statement names what exists and what does not. An employer that ran the round without a rubric is better off saying the round had no rubric than producing one now.
The standard the file documents against is old, and the agency's own reading of it for AI is gone. The Uniform Guidelines were adopted in 1978 7, and the EEOC's AI technical assistance came off its website in late January 2025 and has not returned 8.
The position statement is due in about 30 days, and it will be read by an investigator and, on request, by the person who filed 1. What it can honestly say was settled months earlier, by whoever did or did not write down why the AI round mattered for this job, what the exercise asked, how it was scored, and what everyone else scored.
The 30 days are for assembly. None of them are for authorship.
Common questions
How long do you have to respond to an EEOC charge?
The EEOC notifies an employer within 10 days of a charge being filed. When it requests a position statement, a respondent generally has 30 days to gather the information and submit the statement with its attachments. A request for information is a separate ask, covering personnel policies, the charging party's personnel files and the files of other individuals. The clock does not pause while a hiring team reconstructs a record it never kept.
Does the rejected candidate get to read the position statement?
On request, yes. The EEOC releases a respondent's position statement and its non-confidential attachments to the charging party and gives them 20 days to respond. The reply is not provided back to the employer during the investigation. Confidential material is handled by segregation. Sensitive medical information, Social Security numbers, confidential commercial or financial information, trade secrets and non-relevant personal information about third parties belong in separately labeled attachments, with the statement referring to the sensitive medical and the confidential commercial or financial material without identifying it. Write every sentence expecting the person who filed to read it.
Does an informal AI exercise count as a selection procedure?
Under the Uniform Guidelines, a selection procedure is any measure, combination of measures, or procedure used as a basis for any employment decision. The definition explicitly reaches informal or casual interviews and unscored application forms. A twenty-minute AI exercise a hiring manager runs on finalists is inside it. Being unscored, undocumented or informal moves nothing outside the definition. What puts a step inside it is that a decision rested on the step.
What if a vendor built the AI exercise?
The employer still answers the charge. In technical assistance issued in May 2023 and removed from its website in late January 2025, the EEOC said an employer administering a selection procedure may be responsible under Title VII even where an outside vendor developed the test. The EEOC said the same about the acts of vendors given authority to act on the employer's behalf. Treat that as the agency's 2023 reading rather than as current guidance. Then get the vendor's own documentation, including validity evidence and any impact figures it holds, into the file before a charge makes it urgent.
Which records must be kept once a charge is filed?
All personnel records relevant to the charge, until final disposition. Federal regulation requires personnel and employment records to be preserved for one year from the making of the record or the personnel action, whichever is later. Once a charge is filed, the duty runs to final disposition: the expiration of the period for filing a district court action or the end of any litigation on the charge. Nothing inside that window gets deleted, and nothing that did not exist gets created.
Should selection rates be computed before responding?
Yes, and the Uniform Guidelines already ask for the records underneath them. Each user should maintain records disclosing the impact its tests and other selection procedures have on employment opportunities by identifiable race, sex or ethnic group. Compute the rate on the AI round itself rather than on the funnel as a whole. A rate below four-fifths of the highest group's rate is generally treated by federal enforcement agencies as evidence of adverse impact. The same regulation says smaller differences can still be adverse impact where they are significant in both statistical and practical terms.
References
- 1. Questions and Answers for Respondents on EEOC's Position Statement Procedures ✓ eeoc.gov Supports the 30 days a respondent generally has to gather information and submit a position statement with attachments, the release of the statement and non-confidential attachments to the charging party on request with 20 days to respond, and the statement that the charging party's response is not provided to the respondent during the investigation.
- 2. Effective Position Statements ✓ eeoc.gov Supports the requirement that a position statement give specific, factual responses to every allegation of the charge plus any other facts the respondent deems relevant, that all responsive documentary evidence be submitted, and that sensitive medical or confidential commercial and financial information be referred to but not identified, with such material placed in separately labeled attachments.
- 3. What You Can Expect After a Charge is Filed ✓ eeoc.gov Supports notification of the respondent within 10 days of a charge being filed, and the contents of a request for information: personnel policies, the charging party's personnel files, the personnel files of other individuals and other relevant information.
- 4. 29 CFR 1602.14 - Preservation of records made or kept ✓ law.cornell.edu Supports the one-year preservation period running from the making of the record or the personnel action, whichever is later, and the requirement that once a charge is filed the respondent preserve all personnel records relevant to the charge until final disposition, defined as the expiration of the statutory period for filing a district court action or the termination of any litigation. Current text as amended through 89 FR 46021, May 28, 2024.
- 5. 29 CFR 1607.4 - Information on impact (Uniform Guidelines on Employee Selection Procedures, 1978) ✓ law.cornell.edu Supports 1607.4(A) on maintaining records disclosing the impact of tests and other selection procedures by identifiable race, sex or ethnic group, the 1607.4(B) list of groups kept by sex, and the 1607.4(D) four-fifths sentence together with its own caveat that smaller differences may nevertheless constitute adverse impact where they are significant in both statistical and practical terms.
- 6. 29 CFR 1607.15 - Documentation of impact and validity evidence (Uniform Guidelines on Employee Selection Procedures, 1978) ✓ law.cornell.edu Supports the duty to maintain information on adverse impact for each job and, where a total selection process has adverse impact, documentation of validity evidence for each component of that process which has an adverse impact, plus the simplified recordkeeping option in section 15A(1) for users with 100 or fewer employees.
- 7. 29 CFR Part 1607 - Uniform Guidelines on Employee Selection Procedures (1978), sections 1607.16(Q) and 1607.3(A) ✓ govinfo.gov Supports the definition of a selection procedure as any measure, combination of measures, or procedure used as a basis for any employment decision, covering the full range of assessment techniques through informal or casual interviews and unscored application forms, and the 1978 adoption of the Guidelines.
- 8. Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964, Question 3 (archived capture, 2025-01-25) ✓ web.archive.org Supports the EEOC's May 2023 statement that an employer administering a selection procedure may be responsible under Title VII even where an outside vendor developed the test, and may be responsible for the acts of agents including software vendors given authority to act on the employer's behalf. Cited from an Internet Archive capture because the document was removed from eeoc.gov in late January 2025 and has not returned.
- 9. Fair Employment Practices Agencies (FEPAs) and Dual Filing ✓ eeoc.gov Supports dual filing in both directions under a worksharing agreement: a FEPA dual files the charge with the EEOC, and the EEOC dual files a charge with the state or local FEPA.
9 sources, numbered by first appearance. Every one was opened and checked against the claim it carries. How Olive sources claims
General guidance, not legal advice. Hiring rules differ by state and country and change often; check anything here against your own counsel before you act on it.
Olive assesses how a person works with AI. It does not detect AI-written documents, and it never produces a score, a ranking, or a match percentage for a person. Candidates read the same report the employer reads.