Employers should be aware that the Equal Employment Opportunity Commission (“EEOC”) has implemented a new nationwide procedure concerning the disclosure of a Respondent’s position statement to a Charging Party. For all position statements filed on or after January 1, 2016, in response to a request by the Charging Party or his or her representative during the investigation of the charge of discrimination, the EEOC will release both the Respondent’s position statement and all non-confidential documents supplied by the Respondent.
In addition to providing the position statement and non-confidential documents, the EEOC will now allow twenty days for the Charging Party or his or her representative to respond in writing to the Respondent’s position statement and materials. The EEOC, however, will not permit the Respondent to see any of the Charging Party’s documents or the response to the Respondent’s position statement and materials during the investigation.
According to the EEOC, this new procedure is intended to provide a consistent approach to be followed in all of its district offices, which it says will enhance service to the public. The EEOC also maintains that the new procedure will provide its personnel with better information from the parties to strengthen its investigations.
Employers should be mindful that the position statement and non-confidential information they provide to the EEOC can eventually be discovered by the Charging Party or his or her representative by either following the instructions contained in the EEOC’s Notice of Disclosure Rights or through a Freedom of Information Act request. As a result, employers must be careful to supply only information and documents which are specifically tailored to respond to the allegations of discrimination or retaliation. Since the time to respond to a charge is typically only thirty days, the Respondent should recognize that the facts might not yet be fully known or appreciated in context at the time the position statement comes due. As a result, supplying additional information or arguments beyond what is absolutely necessary to explain the non-discriminatory or non-retaliatory basis for the adverse employment action can create a risk of needing to backtrack once litigation ensues. This sequence can possibly weaken a meritorious defense and impede an employer’s ability to secure summary judgment.
When the Respondent must produce sensitive documents to support its position, two methods can be used to avoid eventual disclosure to the Charging Party. First, the EEOC has historically permitted an employer to redact sufficient identifying information to protect the privacy of the Charging Party’s co-workers. For instance, the documents may show that a given number of employees in various protected classes also received similar corrective actions, but the full name of those employees need not be divulged.
The other method, if disclosure of all identifying information is required, is for the Respondent to only produce the documents once the EEOC has confirmed that it will honor the designation of those documents as confidential. This comports with the Freedom of Information Act, which includes as an exemption to production, “Information that, if disclosed, would invade another individual's personal privacy.”
An employer’s concerns about effectively explaining its lawful conduct in a position statement without disclosing sensitive information to the Charging Party or his or her representative are enhanced by the EEOC’s new procedure of turning over the Respondent’s position statement and non-confidential documents during an investigation and before it issues a decision. This is particularly true when a Charging Party remains employed by the Respondent after the charge is filed and while it is being processed. Accordingly, the best option for a Respondent is always a concise position statement with only the necessary supporting materials, following proper redaction and designation of documents as confidential.
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