For the past few decades, information provided to the Equal Employment Opportunity Commission ("EEOC" or "Commission") has been protected from disclosure during the pendency of an investigation and to some degree after the EEOC's completion of its investigation. That has changed. In a recent press release, the EEOC announced a new nationwide procedure that will have a significant impact on how employers approach the submission of position statements to the Commission.

Specifically, for all position statements requested by the EEOC from an employer (Respondent) on or after January 1, 2016, the EEOC will begin providing a copy of the position statement to the Charging Party upon request. The Charging Party will then have up to twenty (20) days to provide a rebuttal to the position statement. The EEOC expressly states that the Commission will not provide a copy of the Charging Party's rebuttal to the Respondent. Thus, current and former employees (and job applicants) pressing discrimination charges are now the sole beneficiaries of confidentiality in EEOC investigations.

While the EEOC's press release states that Commission staff may redact confidential information as necessary prior to releasing the position statement and its attachments to a Charging Party, the burden appears to be on the Respondent to ensure that confidential information is properly identified and protected. This means that employers must adapt their procedures in responding to the Commission’s request for information to ensure business-related confidential information (e.g., trade secrets) and information pertaining to employee and third party witnesses remains confidential. Going forward, employers should ensure that confidential information is clearly labeled as "confidential" (see below) and should be prepared to provide justification for their position that the information is, in fact, confidential.

The Commission-provided examples of confidential information that should be separately attached to the position statement and clearly marked "Sensitive Medical Information," "Confidential Commercial Information," "Confidential Financial Information," or "Trade Secret Information," as the circumstances dictate, include the following:

1. Medical information (except the Charging Party's medical information);
2. Social Security numbers;
3. Confidential commercial/financial information;
4. Trade secret information;
5. Non-relevant personally identifiable information (e.g., Social Security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc. ) of witnesses, comparators or third parties; and
6. Any references to charges filed against the Respondent by other charging parties.

Additionally, employers must recognize that the Commission, in its investigative process, intends to make its own determination whether information designated by a Respondent as "confidential" will be given the protection desired by the Respondent. The Commission-provided examples (above), for the most part, pertain to individual personal information, which is specifically described in the examples. However, trade secrets and confidential commercial/financial information are broad terms that are subject to interpretation. Unfortunately, the Commission provides no guidelines to assist employers in determining what information falls under these categories. The EEOC has stated that conclusory or blanket assertions that information is confidential may be insufficient to convince the Commission to keep the information from the eyes of the Charging Party. For this reason, a complete and thorough explanation of the bases on which the Respondent asserts that the information is confidential is critical.

As a result of the EEOC's decision to no longer keep employer-provided information confidential during the course of an investigation, employers should consider keeping position statements more general and, to the extent possible, should focus on providing information that is objective and verifiable rather than open to disagreement. This, in some cases, will mean focusing more on addressing lack of discriminatory intent rather than details of the Charging Party's specific situation. Also, although there has always been good reason to refrain from disclosing trade secrets to the EEOC or any other third party, the need for caution in disclosure of any confidential information to the EEOC has been elevated. Now more than ever, what Respondents say in their position statements can and will be used against them, so employers should consult with legal counsel before submitting position statements or responsive documents to the EEOC.