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EEOC To Provide Employer Position Statements To Charging Party: A One Way Street

On February 18, 2016, the Equal Employment Opportunity Commission ("EEOC") announced that it had implemented new procedures that provide for the release of position statements and non confidential attachments submitted by respondents to a charging party upon request during investigation of a charge of discrimination.

When an employee files a charge of discrimination with the EEOC, the respondent employer generally must submit a position statement responding to the allegations in the charge and providing supporting documents, which may include company policies, personnel records and financial information, some of which may be considered confidential.  Prior to the new procedures, EEOC regional offices followed their own guidelines for determining what information submitted by employers would be disclosed to a charging party and in what form.

Under the new procedures, all EEOC regional offices must follow the same requirements.  Beginning January 1, 2016, the EEOC will provide the respondent employer's position statement and non-confidential attachments to the charging party upon request during an ongoing investigation and allow the charging party to respond to the position statement within 20 days.  However, the charging party's response will not be provided to the employer, even if requested.

Several precautions should be taken by employers in response to these new EEOC procedures.  First, the new procedures are likely to broaden the scope of the EEOC's investigation as investigators follow up on assertions in the employee's rebuttal. 

Second, while EEOC proceedings never were a matter to be taken lightly, it is now particularly important that employers' position statements be responsive yet succinct.  Disclosure of the employer's position statement and documents amounts to "free discovery" for charging parties and their attorneys during the EEOC investigation, without allowing the employer to obtain the charging party's response.  This free discovery and the opportunity to rebut the position statement not only may decrease the chances of an EEOC dismissal, but also will be of benefit to the employee in subsequent litigation by allowing the employee's attorney to draft a complaint anticipating the evidence and defenses that will be asserted by the employer.

Third, the determination of what information is confidential rests with the EEOC.  In order to ensure that confidential information is not disclosed to the charging party, confidential information and documents should be clearly marked as such and submitted separately from the position statement as an appendix or an exhibit.  If it is unclear why particular information is deemed confidential, an explanation should be provided.
Finally, above all these new procedures underscore the importance of ensuring that position statements clearly, concisely, completely, responsively, and most importantly accurately set forth an employer's position.  What the employer puts in writing during the administrative proceedings now will be available to employees' attorneys before the investigation is concluded and before a lawsuit is filed.  Inconsistent or inaccurate statements in a position statement could have devastating consequences when exposed in subsequent litigation.