At some point, an employer may face the unpleasant task of responding to an EEOC Notice of Charge of Discrimination from an employee or former employee. Until recently, however, a well-drafted position statement often could stop a discrimination charge in its tracks.  A new EEOC policy may change all that.

In an effort to standardize a process that was previously left to the discretion of each EEOC field office, the EEOC now uniformly allows claimants or their designated representatives to request access to an employer’s position statement, with confidential information redacted. Previously four EEOC districts, including Houston, had provided position statements to charging parties upon request.  However, all other field offices provided verbal summaries of the employers’ position statements, rather than a copy of the statements themselves.

The policy will apply to all position statements filed on or after January 1, 2016. Moreover, a claimant who requests a copy of the employer’s position statement will have 20 days to file a response with the EEOC. Interestingly, however, employers willnot be allowed access to the claimants’ responses.

So what are the upsides and downsides to the EEOC’s new policy?

Pros:

  • The EEOC’s approach will be consistent across all field offices and districts. Thus, employers can now safely presume that a claimant that requests to see the employer’s position statement will receive a copy of the statement.
  • A well-drafted position statement demonstrates the exact, non-discriminatory reasons why a claimant suffered an adverse employment decision. This could provide closure for certain individuals and cut down on the number of lawsuits that result from EEOC charges.

Cons:

  • The policy provides that only the non-confidential portions of the employer’s position statement will be released to the claimant or his/her representative. It will fall to the EEOC to determine which portions of the statement are “confidential”. This opens the door for an employer’s confidential information to be disclosed, inadvertently or otherwise, to claimants.
  • In a bizarre and ironic twist, employers are not entitled to a copy of the claimants’ responses to employers’ position statements. This means that employers may have to wait until the claimant files suit in state or federal court to discover the content of a claimant’s response. The worst case scenario is that employers may never discover what was in a claimant’s response.

Takeaways:  When drafting a position statement, employers should think twice about including information that they do not want to share with the claimant or his/her representative.  We recommend submitting any confidential information separately from the position statement (i.e., in an exhibit or in a separate letter).  In addition, employers should consider that their position statements now have a slightly different audience – the EEOC and potentially the claimant.  This may or may not alter the approach to drafting such a statement, but it is something to keep in mind.

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