When employers receive a charge of discrimination filed with the Equal Employment Opportunity Commission, their response to the agency takes the form of a Position Statement, which sets forth the employer’s reasons for the actions complained of by the charging party. In most cases in the past, the EEOC investigator would not provide the charging party with a copy of the Position Statement, but rather, a description or portions of the response in order to obtain the charging party’s reaction.
Earlier this month, the EEOC announced that it will immediately begin providing copies of the employer’s Position Statement to the charging party upon request. Before this announcement, the agency made this determination on a field office basis, with a minority electing to provide such information. In addition, a number of state deferral agencies require that the employer send the charging party a copy of its statement upon filing.
The EEOC’s new electronic charge system will make sharing such information easier. From the employer’s perspective, allowing charging parties access to their responses may have the benefit of allowing them to understand (often for the first time) the actual business reasons, and supporting documentation for a termination or other adverse employment decision. If the charging party is represented by legal counsel, early access to the employer’s reasons for the action and supporting evidence may reduce such counsel’s interest in vigorously pressing their case.
This new policy will require employers to be cautious about protecting confidential information they want exempted from disclosure. The EEOC recommends that such information be submitted separately from the Position Statement, clearly designated as confidential, and not subject to disclosure to the charging party or other persons.
The EEOC’s new policy does not include disclosure to the employer of the charging party’s charge affidavit or its response to the employer’s Position Statement. Any effort to provide true transparency in the investigative process and an adequate opportunity to address all claims should involve access by employers to this information.