Starting at the beginning of 2016, the Equal Employment Opportunity Commission (“EEOC”) has changed its procedures when it comes to employer position statements submitted in response to charges of discrimination. Now, the EEOC will release complete employer position statements and attachments to any charging party and their attorney who request release. In the past, the charging party and their attorneys were only given a summary of the employer’s position statement. This is significant for a few reasons. First, employers need to be even more cautious about protecting confidential information. Second, the employer’s position statement will now play a more central role in a charging party’s decision as to whether to pursue litigation or not.

Protecting Confidential Information

Particularly in health care, where there are a number of privacy considerations involved in defending against employee charges, now that position statements are almost certain to be disclosed during the EEOC investigation, employers must carefully follow the EEOC procedures for protecting non-public information. Here is the EEOC’s advice to employers regarding confidential information used in position statements:

“The position statement should refer to, but not identify, information the Respondent asserts is sensitive medical information, confidential commercial or confidential financial information. If the Respondent relies on confidential information in its position statement, it should provide such information in separate attachments to the position statement labeled “Sensitive Medical Information,” “Confidential Commercial Information,” “Confidential Financial Information” or “Trade Secret Information” as applicable. Respondent should provide an explanation justifying the confidential nature of the information contained in the attachments. Medical information about the charging party shall not be deemed sensitive or confidential medical information in relation to the investigation.

Respondent should segregate the following information into separate attachments and designate them as follows.

  • Sensitive medical information (except for the charging party’s medical information)
  • Social Security Numbers
  • Confidential commercial or confidential financial information
  • Trade secrets information
  • Non-relevant personally identifiable information of witnesses, comparators or third parties, for example, Social Security Numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc.
  • Any reference to charges filed against the Respondent by other charging parties

The EEOC will review attachments designated as confidential and consider the justification provided, as the agency will not accept blanket or unsupported assertions of confidentiality.”

Think About HIPAA

Note the EEOC, in its guidance, does not anticipate certain kinds of private information which may be relevant to health care settings such as patient data. Health care organizations especially should be vigilant about keeping patient information protected. Pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), a health care provider that is a party to a legal proceeding, such as a plaintiff or defendant, may use or disclose protected health information for purposes of the litigation or other legal services as part of its health care operations. However, the provider must make reasonable efforts to limit such uses and disclosures to the minimum necessary to accomplish the intended purpose. Health care providers should consider de-identifying patient information or stripping direct identifiers from EEOC position statements. Only relevant patient information should be included and should be marked as sensitive medical information in a separate attachment.

Think About Individual Accountability – The DOJ Will

Further, every health care entity, with any federal funding or reimbursements, should make sure statements are not only completely accurate, but also not inadvertently written such that they could be taken out of context if subjected to a Department of Justice (“DOJ”) investigation. The recent DOJ memo focusing on individual accountability may heighten scrutiny on employment disputes and personnel actions. EEOC position statements could end up as evidence in a regulatory violation prosecution.

When determining reasonable efforts to limit the uses and disclosures, organizations may want to consider the EEOC guidance states the EEOC will decide, in its sole discretion, what to release to charging parties regardless of what the employer designates as confidential.

Even if the charging party does not request the position statement during the investigation, the statements are still subject to Freedom of Information Act requests later.

The release of position statements to charging parties during the investigation may also impact how employers draft their defenses. Knowing the claimant will likely read the statement early in the investigation process, employers may want to think about the impact of the tone and wording of the statement on the claimant. Particularly where the charging party is still employed, the statement may impact workplace morale.

Requesting Additional Time to Respond

If an employer believes it requires more than 30 days to submit its position statement, it must, at the earliest possible time, make a request for an extension, setting forth good cause for the extension and the amount of additional time requested. Submitting a request for extension of time does not automatically extend the deadline for providing the position statement. A brief extension of time may be allowed in particular cases but only when it is clear that the employer is working with due diligence to supply all of the necessary information. Evidence of due diligence would include a partial submission of information related to the allegations in the charge.

Uploading Position Statements

Unlike in the past, employer position statements are to be uploaded electronically to the EEOC. Respondents should upload the position statement and attachments into the Respondent Portal using the + Upload Documents button. Select the “Position Statement” Document Type and click the Save Upload button to send the Position Statement and attachments to EEOC. Once the Position Statement has been submitted, employers will not be able to retract it via the Portal.

Sharing Positions Is a One-Way Street

Finally, there is another interesting change in the EEOC’s 2016 process where the charging party will be allowed to submit a response to the employer’s position statement but the employer is not allowed to see it until after the investigation closes. This should also inform how position statements are drafted because the employer now needs to anticipate, to the degree possible, the charging party’s responses and proactively respond in its initial position statement.

Besides the advice the EEOC has given employers, charging parties are also advised of the new procedures.