The EEOC’s New Nationwide Procedures for Releasing Employer Position Statements Place Confidential

02.26.2016

The Equal Employment Opportunity Commission (“EEOC”) recently announced two changes to its procedures.  The first announcement involves the EEOC’s new Digital Charge System under which Respondents can electronically submit their position statement and attachments into the digital charge file rather than faxing or mailing the documents to the agency.  The more significant announcement made by the EEOC is its adoption of new “Nationwide Procedures for Releasing Respondent Position Statements and Obtaining Responses from Charging Parties.”  Pursuant to the Nationwide Procedures:

• “EEOC will provide the Respondent’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 Respondent during the investigation.”

Among other things, this second change requires the employer to proactively identify confidential information in order to avoid that information being given to the Charging Party, as well as excluding such information from the position statement itself, if possible.

The Nationwide Procedures retroactively apply to all EEOC requests for position statements made on or after January 1, 2016.

Background on Position Statements
Position statements are an employer’s response to a charge alleging discrimination or other unlawful or retaliatory activities typically brought by an employee or former employee.  Through the position statement, employers typically assert the legitimate, nondiscriminatory reasons for a termination or other disciplinary decision.  Position statements are produced during the EEOC’s investigation of a charge when the EEOC requests that a Respondent employer submit a position statement and documents supporting its positions.  Employers often produce highly sensitive materials in defense of an EEOC Charge, including information relative to other employees that fall within their privacy rights.

Implications for Employers
Based on the Nationwide Procedures, employers must really consider whether to include confidential information in position statements as such information could be released to the Charging Party upon request, absent affirmative steps to ensure confidentiality.  Although the EEOC contends that the “EEOC staff may redact confidential information as necessary prior to releasing the information to a Charging Party or representative,” there are no guarantees the information will be redacted before it is given to the Charging Party.  (emphasis added).  As a matter of practice, employers should avoid including confidential information in position statements to avoid the risk associated with its inadvertent release to the Charging Party.  The EEOC specifically advises employers not to include confidential information in the position statement itself, to the extent possible, and to clearly label any attachments as “Confidential” so that they are not released.

With respect to the latter recommendation, employers must be even more conscientious in labeling documents attached to position statements.  Attached documents must be clearly labeled as “Confidential,” so that the documents are not released to the Charging Party.

Significance
Although the full impact of these changes are not known, the potential inadvertent release of confidential or privileged employer documents during the EEOC investigation highlights the need for employers to consult an attorney during the initiation of the EEOC complaint process rather than when a civil complaint is filed.