A well-crafted position statement is critical to the employer’s defense of a charge of discrimination filed at the Equal Employment Opportunity Commission (EEOC). It is the company’s opportunity to tell its side of the story, point out relevant case law, and persuade the EEOC investigator to dismiss the charge with a finding of no probable cause. However, a new EEOC policy may alter what employers should include in their position statements.   

In an effort to standardize the investigation process, the EEOC issued Nationwide Procedures for Releasing Respondent Position Statements and Obtaining Responses from Charging Parties, which uniformly allow an employer’s entire position statement, together with all non-confidential inclusions, to be submitted to the claimant. Previously, disclosures of this sort were made in the discretion of the particular field offices or investigators involved, and practices were inconsistent. The EEOC investigators generally summarized certain contents of a position statement to elicit further information, but did not provide unfettered access to it.   

The EEOC’s new procedures provide the claimant the opportunity to review the position statement and to provide a response within 20 days. However, because the EEOC does not intend to furnish employers with the claimants’ responses to the position statement, employers will not receive a mutual benefit from this new procedure. The strategic implications of these new charge-handling procedures are particularly significant with respect to confidential information. The EEOC now requires all confidential documents to be specifically and conspicuously identified and submitted as a separate submission through the EEOC’s new “Digital Charge System.” The EEOC has warned it will not accept blanket or unsupported assertions of confidentiality and expects a specific explanation justifying the confidential nature of the information identified. Whether the EEOC will, in any particular instance, accept the employer’s characterization of material as confidential is unknown.

In its Questions and Answers for Respondents, the EEOC opines that the following information is confidential:

• Sensitive medical information (of an individual other than the charging party);
• Social Security numbers;
• Confidential commercial or confidential financial information;
• Trade secrets information;
• Non-relevant personally identifiable information of witnesses, comparators or third parties ( i.e., Social Security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses and the like); and
• References to charges filed against the employer by other charging parties.

Employers should also keep in mind that the EEOC’s new confidentiality provisions apply to the contents of the position statements themselves. One way for employers to handle the potential disclosure of confidential information in position statements is simply to reference the information, indicating that, due to its nature, it will only be provided upon request. Although this approach may lead to more Commission-issued subpoenas or follow-up requests for information, it will preserve the employer’s arguments as to confidentiality.   

Finally, since the charging party will now have access to the employer’s position during the EEOC’s investigative process, the charging party can potentially gain valuable insight into the employer’s defenses and strategy. Claimants and their counsel now may be alerted to new theories of recovery and perhaps the identity of other possible claimants with similar or related grievances– particularly when the EEOC has asked for information about comparators. It may be in the best interest of employers to tailor their position statements to provide only the information necessary to respond to claimants’ Charges. Position statements should be crafted and/or reviewed by legal counsel with these considerations in mind.

The new procedures apply to all position statements submitted on or after January 1, 2016. Any employers who have submitted position statements after January 1 may also want to reach out to the investigators assigned to their matters and amend their responses to reflect these new procedures.