You’ve seen the headlines — the Equal Employment Opportunity Commission (“EEOC”) is changing the way Position Statements are handled during the course of an investigation – but what does it mean and is it really that big of a deal?  Should employers be doing anything different when it comes to responding to EEOC Charges in the future?  The answer is, probably…

The EEOC’s new nationwide procedures will permit employees who file an EEOC Charge against an employer to get access to the employer’s Position Statement responding to the Charge.  When an employee files a Charge of Discrimination with the EEOC, the employer, typically per the EEOC’s request, is allowed to file a Position Statement in response to the Charge.  The Position Statement operates as the employer’s first opportunity to address the allegations leveled against it.  The EEOC, as part of its investigation of the allegations, reviews the Position Statement, and any other documents submitted along with the statement, prior to issuing its determination.

Previously, a Charging Party could not get access to the employer’s Position Statement while the EEOC’s investigation was ongoing.  The employee had to wait until he/she filed a lawsuit against the employer, following the EEOC’s investigation, before he/she could obtain a copy of the employer’s Position Statement pursuant to a formal request pursuant to the Freedom of Information Act (“FOIA”).  Under the EEOC’s new procedures, however, which apply to all EEOC requests for Position Statements made to employers on or after January 1, 2016, an employee filing a Charge of Discrimination may request from the EEOC a copy of the employer’s Position Statement now — even while the EEOC’s investigation is still underway.  The employee will then be allowed 20 days to reply to the employer’s Position Statement.

Importantly, the EEOC will not allow the employer to request a copy of the employee’s reply.  Instead, employers will have to wait until a lawsuit is filed, if one ever is, to obtain the reply, and any other documents or information submitted by the employee to the EEOC, through a FOIA request.  This clearly one-sided procedure essentially will allow Charging Parties to see their opponent’s cards while keeping their own cards largely hidden.  In addition, employees will now have the tactical advantage of being permitted to reply to the arguments made by an employer in a Position Statement and produce further documentation to the EEOC for consideration, all of which will remain hidden from the employer.

In its “Questions and Answers” page regarding the new procedures, the EEOC justifies this approach by noting that it is “releasing the first formal document received from the Charging Party, the Charge, and the first formal document received from the Respondent, the Position Statement.”  But because EEOC Charges filed by employees are often bare-boned documents devoid of any substantive allegations or facts, the employer is often in the dark about the theory of the Charging Party’s case after simply reviewing the EEOC Charge.  The Charging Party’s reply responding to the employer’s Position Statement will likely contain more substantive and specific allegations and/or facts and, for this reason, the employer should also be allowed to obtain a copy of the reply.

If all of this seems a tad bit unfair to employers, it’s because it is.  So what should employers do with this information?  Keep it simple.  Arguably, even before these new procedures were rolled out, it was considered good practice for employers to be brief and succinct with their Position Statements while still providing the EEOC with the relevant information the agency might need to complete its investigation.  This is because long and unnecessarily detailed Position Statements, prior to an in-depth investigation of the allegations, were thought to raise the risk of the employer being bound by statements articulated in their Position Statements in a later litigation, when the employer has had the benefit of the full scope of discovery and may learn of additional facts upon which it would rely in formulating its defenses.  With the introduction of these new procedures by the EEOC, employers should be even more cautious not to unnecessarily elongate their Position Statements.  While the employer’s Position Statement should be “clear, concise, complete and responsive,” as the EEOC explains in its “Questions and Answers” page, short and succinct statements outlining the employer’s position should suffice and are in the employer’s best interest.  Moreover, with these new procedures, it is now more essential than ever before for employers to consult with legal counsel when responding to EEOC Charges.

A link to the EEOC’s “Questions and Answers” for employers regarding the new procedures can be found here: http://www.eeoc.gov/employers/position_statement_procedures.cfm