The EEOC’s New One-Way Street: Providing Position Statements to Charging Parties

Effective February 18, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) will uniformly allow employees bringing unlawful discrimination claims to gain access to the employer’s Position Statement submitted in response to the filing of a Charge of Discrimination. The disclosure will also retroactively apply to all requests for Position Statements made on or after January 1, 2016. Instead of verbally advising the Charging Party of the contents of the employer’s Position Statement, the EEOC will now provide the employer’s Position Statement and non-confidential attachments to Charging Parties upon request. The EEOC will also allow the Charging Party with an opportunity to respond within 20 days. The Charging Party’s response, however, will not be provided to the employer during the pendency of the investigation. The EEOC maintains that the new “Nationwide Procedures for Releasing Respondent Position Statements and Obtaining Responses from Charging Parties” are meant to unify approaches across all of its offices and will allow it to gain better information to strengthen its investigations.

The EEOC’s new policy also fails to assure employers that documents provided in support of their Position Statement will remain confidential.  The EEOC only advises that its “staff may redact confidential information as necessary prior to releasing the information to a Charging Party or her representative.” Thus, when submitting a Position Statement, employers must now carefully review whether or not any confidential proprietary business information is being produced. If so, employers should clearly mark exhibits as “confidential” to alert the EEOC that the document(s) should not be provided to the Charging Party. The EEOC also advises that employers should provide an explanation justifying the nature of the information contained in the attachments. The EEOC suggests that the following information should be segregated into separate attachments and designate them as follows:

• 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, for example, social security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc.
• Any reference to charges filed against the employer by other charging parties.

The EEOC also warns that it will not accept “blanket or unsupported assertions of confidentiality.” In addition, the EEOC announced the implementation of a new Digital Charge System. Now, employers can upload Position Statements and attachments into the digital Charge file rather than faxing or mailing the documents to the EEOC.

For more information regarding the potential impacts of the EEOC’s new procedures and best practices on how to respond to a Charge of Discrimination, please contact Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@genovaburns.com or 973-533-0777.