Employers routinely provide position statements to the Equal Employment Opportunity Commission (EEOC) investigators in defense of discrimination charges. These position statements cover the employer's (respondent’s) version of the facts and why the employer believes the charge should be dismissed. The EEOC recently announced that it will begin providing for the release of such employer position statements to charging parties or their representatives upon request during the investigation of a charge of discrimination. These procedures will apply to all EEOC requests for position statements made to employers on or after January 1, 2016.
An employer generally has thirty (30) days to submit a position statement and attachments to the EEOC during an investigation. If the employer relies on confidential information in its position statement, the EEOC states the employer should provide such information in separately labeled attachments. After the EEOC reviews the employer's position statement and attachments, the EEOC staff may redact confidential information as necessary prior to releasing the information to charging parties or their representatives. Employers should put confidential information in separate attachments to the position statement labeled "Sensitive Medical Information," "Confidential Commercial Information," "Confidential Financial Information" or "Trade Secret Information" to best protect confidentiality during EEOC's review of the information. In addition, employers should put certain additional information into separate attachments including "Non-Relevant Personally Identifiable Information of Witnesses, Comparators or Third Parties, for example, Social Security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc." The EEOC will then provide the position statement and non-confidential attachment to charging parties and provide them an opportunity to respond within twenty (20) days. The charging parties' response will not be provided to the employer during the investigation.
Editor's Note: The EEOC's new procedures seem unfair, as a charging party will receive a copy of the employer's position statement, but the employer will not receive a copy of the charging parties' response to the employer's position statement. The EEOC explains that while the charging parties' response will not be provided during the investigation to the employer, the EEOC is releasing the first formal document received from the charging party, the charge, and the first formal document received from the employer, the position statement. The EEOC does state that if during the course of the investigation the EEOC determines that it needs additional information from the employer, including information to address the charging parties' rebuttal to the position statement, the investigator will contact the employer.
The bottom line is that in disclosing the employer's position statements to charging parties during the investigation, the charging parties will have a better chance of prevailing in the investigation by refuting the statements and the like. In the past, the EEOC did not release file materials except when formal court litigation was in progress.