Through a simple press release on its website, the Equal Employment Opportunity Commission (“EEOC”) recently announced new procedures allowing a charging party to obtain a copy of his or her employer’s position statement (and “non-confidential” portions of exhibits) filed in response to a charge of discrimination. The new procedures, which will apply to all position statements requested on January 1, 2016 or later, also allow a charging party 20 days to reply to the employer’s charge response. The EEOC will not allow an employer to access the charging party’s reply.
Prior to this policy change, a charging party generally did not have access to an employer’s charge response until after the charge was dismissed and he or she requested the agency’s file under FOIA or Section 83 of the EEOC Enforcement Manual. The new procedures not only allow a charging party to access and respond to an employer’s position statement while the charge is pending, they also give a charging party access to the employer’s possible litigation strategy, allowing the plaintiff to carefully craft his or her complaint with these defenses in mind.
Employment lawyers routinely counsel employers to carefully and concisely respond to the particulars in charges of discrimination. The EEOC’s new procedures allowing charging parties to access (and respond to) charges further highlight the importance of crafting factually accurate and streamlined responses and can accelerate the adverse consequences of providing inaccurate information. For example, if a charging party’s reply convinces the EEOC that an employer’s factual allegations are shaky, the chances of a “cause” finding or, even worse, EEOC litigation, significantly increase.
Another potential consequence of the EEOC’s new access procedures is broader EEOC investigations prompted by new factual allegations (or counterarguments) contained in the employee’s reply statement. EEOC investigators will likely follow up on these new allegations with additional requests for documents and information, creating more potential land mines (and administrative headaches) for employers and lengthening the duration of the investigation.
Finally, employers should also be careful to avoid access to confidential information submitted in support of its position statement. Although the EEOC’s press release states that it will redact confidential information from the charge response and attached exhibits, an employer should not rely on the Commission to perform this function and should either submit redacted copies to the EEOC or very carefully identify the portions of its response and exhibits it deems confidential.