Why it matters

The Equal Employment Opportunity Commission (EEOC) has developed a new nationwide policy on position statements, the agency said last week in a press release announcing "Nationwide Procedures for Releasing Respondent Position Statements and Obtaining Responses From Charging Parties." From now on, an employer's position statement and supporting documentation submitted to the EEOC in response to a charge of discrimination will be provided to the employee charging party upon request. If an employer relies on confidential information (defined by the agency to include sensitive medical information, Social Security numbers, and trade secrets information, among other data), then that information should be provided by employers in a separate attachment to the position statement labeled with the type of information included ("Sensitive Medical Information," for example) to avoid being provided to the charging party employee. The new policy—which previously applied in some but not all agency offices—applies retroactively to all EEOC requests for position statements made on or after January 1, 2016. "The new procedures provide for a consistent approach to be followed in all of EEOC's offices, which enhances service to the public," the agency wrote in a press release about the changes. "The procedures will also provide EEOC with better information from the parties to strengthen our investigations."

Detailed discussion

The EEOC announced a new nationwide policy on position statements recently, putting employers on notice that their position statement will be shared—in full—with charging parties, with an exception allowed for separate attachments specifically designated as including confidential information.

Position statements and supporting documents are requested by the EEOC during its investigation of a charge. "It is in the Respondent's interest to provide an effective position statement that focuses on the facts," the EEOC advised. "An effective position statement is clear, concise, complete and responsive. It should clearly explain the Respondent's version of the facts and identify the specific documents and evidence supporting its position. A position statement that addresses all the allegations in the charge and provides relevant evidence to support the Respondent's position can help EEOC accelerate the investigation and tailor its requests for additional information."

Generally, respondent employers have 30 days to gather the information requested and submit a position statement and attachments to the EEOC.

According to "Nationwide Procedures for Releasing Respondent Position Statements and Obtaining Responses from Charging Parties," the EEOC will now "provide the Respondent's position statement and non-confidential attachments to Charging Parties upon request and provide them an opportunity to respond within 20 days."

To protect confidential information from being shared with a charging party, the agency provided specific instructions to employers. If an employer respondent relies on confidential information in its position statement, that information should be provided in a separate attachment labeled with the type of confidential information included, along with an explanation "justifying the confidential nature of the information contained in the attachments," the EEOC said. The EEOC has made it clear that it will not accept blanket or unsupported assertions of confidentiality.

In a question-and-answer document for employers, the EEOC delineated a list of what the agency considers confidential information: sensitive medical information (not including the charging party's medical information); Social Security numbers; confidential commercial or financial information; trade secrets information; nonrelevant personally identifiable information of witnesses, comparators, or third parties (examples include personal e-mail addresses and phone numbers, home addresses, and a date of birth in cases other than those involving age discrimination); and any reference to charges filed against the employer by other employee charging parties.

The charging party's response to the employer's position statement will not, however, be provided by the EEOC to the employer during the investigation. "The Commission 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," the agency explained. "No other disclosures are contemplated at this time. If during the course of the investigation, EEOC determines that it needs additional evidence from the Respondent, including information to address the Charging Party's rebuttal to the position statement, the investigator will contact the Respondent". According to the EEOC, this "supports effective and efficient management of the charge workload to focus the agency's resources where government enforcement can have the greatest impact."

Taking immediate effect, the new policy also applies retroactively to all EEOC requests for position statements made on or after January 1, 2016.

To read the EEOC's press release about the new policy, click here.

To read the question-and-answer document for respondents, click here.