If I were to challenge you to a game of high stakes poker, would you accept the challenge if you had to show me your cards but I did not have to show you mine? Of course not! But, that’s exactly what the Equal Employment Opportunity Commission (“EEOC”) is asking employers to do.
Here’s the skinny . . . most employers respond to a charge of discrimination by submitting a position statement refuting the allegations and attaching copies of policies, personnel files, payroll records, comparative evidence, etc., and other confidential information to support their position. Previously, many EEOC field offices (including Miami) had not shown the employer’s position statement or exhibits to the employee/complainant (“Charging Party”). Rather, the EEOC provided verbal or written summaries of the employers’ side of the story. Well, the rules have changed drastically.
The EEOC has adopted new “Nationwide Procedures for Releasing Respondent Position Statements and Obtaining Responses from Charging Parties,” which apply to all requests for position statements on or after January 1, 2016. Under the new procedures, after the EEOC reviews an employer’s submission, the EEOC will provide a copy of the position statement to the Charging Party (or his/her representative) upon request. The Charging Party is afforded an opportunity to respond within 20 days.
Will you get to see a copy of the Charging Party’s response? No! The Charging Party’s responses will not be shared with the employer during the investigation. [Employers must wait until the investigation is completed and then file a Freedom of Information (“FOIA”) request. The EEOC claims these new procedures are intended to create uniformity and greater transparency in the handling of discrimination charges throughout the country (i.e., the employer sees the Charge of Discrimination, and the Charging Party sees the position statement). Unfortunately, this transparency is not reciprocal, as most discrimination charges contain bare bone allegations, whereas employer position statements are usually fact-intensive.]
The EEOC’s new procedures further instruct that if an employer relies on confidential information in its position statement, it should provide the confidential information in separately marked attachments. In recently issued guidance as well as a “Q&A” for employers, both of which are available on the EEOC’s website, the agency advises employers how to handle confidential information when submitting position statements and attachments to the EEOC. Although the EEOC contends that its staff “may redact confidential information as necessary prior to releasing the information to a Charging Party or representative,” there are no guarantees the information will be redacted before it is given to the Charging Party. (emphasis added).
In addition to these new Nationwide Procedures, employers are instructed to upload position statements and attachments using the EEOC’s new Digital Charge System, rather than mailing or faxing the documents.
Best Practices: The EEOC’s new procedures create an uneven playing field for employers and a windfall for plaintiffs’ attorneys. When drafting a position statement, carefully consider what information you share with the Charging Party or his/her representative. If you are submitting confidential information, consider (i) submitting it separately (or upload it digitally as a separate document); and (ii) marking all documents that contain confidential information with a “Confidential” stamp or watermark. Also, the new procedures highlight the importance of preparing concise (and, of course, accurate) position statements.
Before drafting your position statement and showing your cards, also consider consulting with experienced employment counsel to determine your best legal position and what facts should be included in the position statement.