The Equal Employment Opportunity Commission (“the EEOC”) has implemented new procedures for employer position statements that apply to all EEOC requests for position statements made on or after January 1, 2016. Most importantly, the new procedures state that, upon the charging party’s request, the EEOC will now provide the charging party with a copy of the employer’s position statement while the matter is pending before the EEOC. Previously, the charging party could obtain the employer’s position letter only after the EEOC investigation was completed.
In addition, the new EEOC procedures allow the charging party to respond to the employer’s position statement within 20 days from the date the position statement was sent to the charging party. The charging party may submit a response in writing, or contact the investigator and provide a response over the phone or in person. The charging party’s response—even if in writing—will not be provided to the respondent. If the EEOC determines that it needs additional evidence from the respondent to address the charging party's response, the EEOC investigator will contact the respondent.
This change in procedure directly implicates confidentiality issues. On this topic, the EEOC provides more information as to what will (and will not) be considered “confidential” and therefore will not be disclosed to the charging party. According to the new procedures, the EEOC “will not accept blanket or unsupported assertions of confidentiality” by employers. Instead, the EEOC specifies particular types of information that will be considered confidential – and only if it is labeled as confidential and contained in separate attachments to the position statement. The information specified by the EEOC as confidential includes the following:
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Sensitive medical information (except for the charging party's medical information);
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Social Security numbers;
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Confidential commercial or confidential financial information;
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Trade secrets information;
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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, personal phone numbers, and personal email addresses; and
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Any reference to charges filed against the respondent by other parties.
Finally, according to the new procedures, the employer can now submit the position statement online through the EEOC’s newly-created Digital Charge System, rather than faxing or mailing documents to the EEOC. The EEOC believes that these new procedures will provide the agency with more complete information from the parties that will strengthen its investigation.
This change in procedure will obviously impact the employer’s strategy in developing position statements. It also means that employers must be more diligent than ever in evaluating confidentiality issues when preparing position statements.
