The answer is, “no one knows,” including, it seems, the EEOC. A federal appeals court recently found that the EEOC’s own rules allowing disclosure of confidential information without notice conflicted with its Freedom of Information Act regulations, which require notice before such disclosure. Venetian Casino Resort LLC v. EEOC, No. 06-5361 (D.C.Cir. June 27, 2008). In light of the court’s ruling, this much is clear: employers should not assume confidential information will stay that way once it gets to the EEOC.
Often, crafting a response to the factual allegations in an EEOC charge is the most obvious challenge for employers. But, you cannot ignore the risk that documents supporting your response could end up in a potential plaintiff’s or competitor’s hands. So, what can you do? First, be proactive about looking for potential pitfalls. If your company does not typically work with outside counsel in responding to EEOC requests, make sure the person who responds is trained to spot these types of issues. Not every response to an EEOC charge will implicate confidential information, but it’s better to think about it beforehand than have to deal with it when it’s already too late.
If the EEOC has requested sensitive documents, especially regarding others considered for a position or more detail about a particular process, think about whether the documents contain confidential information. If so, there may be several ways to proceed.
First, you could try contacting the EEOC to determine the agency’s position on how it will treat
confidential information. If negotiating with the EEOC directly does not resolve the issue, you may
have to consider going to court to request an injunction or other relief to avoid having to provide the
information, or to keep the EEOC from disclosing your information without notice.
Either way, be sure to mark documents “confidential” if you have a basis to believe that they are, and
consider submitting them with a request that the documents not be disclosed to third parties. That way,
your position regarding the status of the documents is clear to the EEOC and to any court that may later
review the documents.