Once upon a time, an employer could respond to an EEOC Charge of Discrimination and include all manner of responsive documents, secure in the knowledge that the Charging Party would never see the position statement, including the documents produced to the EEOC in response to the Charge, unless and until the Charging Party filed his or her own private civil lawsuit, often years later.

The EEOC has changed its procedures, but only in favor of the Charging Party.  Now, a Charging Party can request a copy of the employer’s position statement and any documents the employer produced to the EEOC in connection with its response to the Charge while the Charge is pending.  Employers, however, do not get the advantage of seeing any documents the Charging Party provided to the EEOC while the Charge is pending.  Employers are still limited to the Notice of Charge and the Charge of Discrimination itself.

All is not lost, however.   The EEOC will redact the employer’s confidential information before turning the employer’s documents over to a Charging Party who requests them (assume that any Charging Party represented by competent counsel will request them).  Accordingly, employers should be careful to mark as confidential any information or documents that contain confidential information.

The EEOC requires employers to segregate confidential information and designate the information as falling into one or more of the following categories:

• Sensitive medical information (except for the Charging Party’s medical info).
• Social Security Numbers.
• Confidential commercial or 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 and personal phone numbers, etc.
• Any reference to other charges filed against the Respondent or to other charging parties, unless the other charges are by the Charging Party.

The EEOC says that it will “review attachments designated as confidential and consider the justification provided, as the agency will not condone blanket or unsupported assertions of confidentiality.”

Employers should carefully respond to EEOC Charges of Discrimination and respond completely to the Request for Information, and designating information as confidential to prevent its disclosure to the Charging Party.  Too often, however, employers only give their side of the story without responding to, and refuting, where applicable, each of the Charging Party’s allegations.   Employers are encouraged to seek experienced employment law counsel when undergoing an EEOC investigation.