The U.S. Equal Employment Opportunity Commission (EEOC) announced that it has implemented nationwide procedures that provide for the release of employer position statements and non-confidential attachments to a charging party or representative upon request during the investigation of a charge of discrimination. These procedures apply to all EEOC requests for position statements made to Respondents on or after January 1, 2016. Previously, the charging party was not allowed access to the position statement during the investigation however portions of the statement were often read to the charging party during the investigation to elicit a response. The charging party could only obtain the position statement after the close of the investigation by written request to the EEOC. The EEOC stated that, “The new procedures provide for a consistent approach to be followed in all of EEOC’s offices, which enhances service to the public. The procedures will also provide EEOC with better information from the parties to strengthen our investigations.”
After the charging party files a charge of discrimination the employer generally has 30 days to respond in its position statement. Under the new procedures, the EEOC will provide the employer’s position statement and non-confidential attachments to charging parties upon request and provide them an opportunity to respond within 20 days. The charging party’s response will not be provided to employer during the investigation. Thereafter, if during the course of the investigation, EEOC determines that it needs additional evidence from the employer, including information to address the charging party’s rebuttal to the position statement, the investigator will contact the employer. According the EEOC, “This supports effective and efficient management of the charge workload to focus the agency’s resources where government enforcement can have the greatest impact.”
When drafting its position statement, the EEOC advises employers to focus “on the facts relevant to the charge of discrimination and to identify the specific documents and evidence supporting its position.” According to the EEOC, “An effective position statement is clear, concise, complete and responsive. It should clearly explain the Respondent’s version of the facts and identify the specific documents and evidence supporting its position. A position statement that addresses all the allegations in the charge and provides relevant evidence to support the Respondent’s position can help EEOC accelerate the investigation and tailor its requests for additional information.” If the employer relies on confidential information in its position statement, the EEOC states that the employer should provide such information in separately labeled attachments. The EEOC’s new Digital Charge System, allows employers to upload their position statement and attachments into the digital charge file rather than faxing or mailing the documents.
After EEOC reviews the employer’s position statement and attachments, the EEOC staff may redact confidential information as necessary prior to releasing the information to a charging party or representative. However, while the EEOC will consider the employer’s request for confidentiality, the agency will not accept blanket or unsupported assertions of confidentiality. Under the new EEOC procedures, employers are instructed to put the following “confidential” information into separate attachments including, sensitive medical information (except for the Charging Party’s medical information, Social Security Numbers), confidential commercial or confidential financial information, trade secrets information, non-relevant personally identifiable information of witnesses, comparators or third parties, and any reference to charges filed against the employer by other charging parties. In response to the position statement, the charging party may submit a written response or contact the investigator to provide a response over the phone or in a meeting.
Based on the new procedures, since the charging party will have access to the employer’s position during the investigation, they can gain valuable insight in the employer’s defenses and strategy and respond during the investigation. With that in mind, an employer should carefully prepare its position statement and designate the documents which it deems “confidential” and be prepared to explain the reason such documents are not subject to disclosure to the charging party.
Joette S. Doran has her law practice in Hoffman Estates. She concentrates in employment law and handles employment law actions in state and federal administrative agencies and courts. She was a former Co-Chair of the NWSBA Employment Law Committee, is a Member of the Board of Governors and is the Chair of the Women’s Law Committee. For more information please visit her website at www.joettedoran.com.