We are seeing more and more employers receive electronic notice of new EEOC charges through the EEOC’s new “digital charge” system. This system was piloted in certain EEOC districts starting last May. Starting Jan. 1, 2016, all EEOC offices will notify employers via email of new EEOC charges filed against them. However, this last month and a half we have continued to see a few new charges come in the traditional way via snail mail.
What happens when you receive a digital charge? The EEOC will send an email to the email address on file for the employer. The EEOC does not provide much guidance on how it determines which email address to use, but encourages employers to update their contact information with the EEOC by contacting their local EEOC office. Ask yourself who in your organization you want to receive first notice from EEOC that a charge has been filed, then make sure the EEOC has that person’s contact information. For employers in Columbus and points generally east and north, the appropriate local office is the EEOC Cleveland Field Office. For employers everywhere else in Ohio, your local EEOC office is the EEOC Cincinnati Area Office. Have operations outside Ohio? The EEOC’s local offices are listed here. We strongly recommend employers ensure the EEOC has the right contact information to so that charges are routed appropriately within their organizations. If the EEOC local office sees that the employer has not logged into the system within ten days of the EEOC’s email notice, the local office is instructed to attempt to notify the employer again of the charge.
The EEOC’s email will provide instructions to access the EEOC Respondent Portal. Once logged into the portal, employers responding to charges will be able to:
- View and download the charge
- Respond to an invitation to mediate the charge through the EEOC’s mediation program
- Submit the position statement and any attachments
- Submit responses to any Requests for Information from the EEOC
- Provide contact information for the employer representative or the employer’s legal representative responsible for handling the charge
- Facilitate electronic communications between the employer and EEOC about the charge, including requesting extensions to response deadlines
Each charge will have a unique password. The EEOC encourages respondents to keep their portal access instructions accessible and secure. Importantly, only EEOC officials and the respondent will be able to address the documents and information posted by the respondent in the portal; charging parties will not have access. However, that does not mean charging parties won’t see the position statement—under a new EEOC policy effective Jan.1, 2016, all EEOC offices will now provide copies of position statements to charging parties. Later this year, the EEOC also intends to provide a similar, separate portal for charging parties to communicate with the EEOC and provide documents.
The EEOC issued a press release announcing it will now, on a nationwide basis, share position statements with charging parties. In the past, many EEOC offices would provide a verbal summary of the employer’s position statement to the charging party but would not share the document with him/her. That has now changed. Apparently the EEOC “may” redact confidential information before providing it to the charging party, so employers should clearly indicate information they consider confidential, including any attachments submitted with the position statement. The policy is effective as of January 1 of this year, so any position statements submitted since then could be shared with charging parties.