The Equal Employment Opportunity Commission ("EEOC") has announced a new nationwide policy relevant to employers’ submission of position statements in response to EEOC charges.

When employers receive a discrimination charge from the EEOC, they often are asked to submit a position statement responding to the allegations. A well-crafted position statement may help the employer significantly in getting the EEOC to dismiss the charge with no finding of probable cause that discrimination occurred. It also often will be accompanied by multiple documents about company policy, personnel, and even financial or other business information, some of which the employer may consider to be confidential.

The EEOC’s priority charge handling procedures previously recommended that information about the employer’s position be shared with charging parties, upon request, during the investigation. The manner of sharing that information varied among offices, including giving verbal summaries of the employer’s position, but sometimes included sharing the position statements. Otherwise, a charging party could gain access to an employer’s position statement after receiving a dismissal and notice of right to sue, and by submitting either a Freedom of Information Act request or a request under section 83 of the EEOC Compliance Manual, so long as the notice had not expired.

Under the new procedure, the EEOC plans to make its process more uniform by having all field offices give charging parties access, upon request, to the employer’s position statement and attachments during the investigation of the charge. If a charging party requests and receives a position statement, he or she will then have 20 days to submit a response. However, the EEOC does not plan to provide any rebuttal provided by the charging party to employers.

Employers responding to a charge should familiarize themselves with the EEOC’s new procedures regarding position statements, particularly as it relates to attachments. All attachments deemed to be confidential need to be labeled as such and submitted as a separate attachment through the EEOC’s new "Digital Charge System." EEOC staff may redact confidential information before providing the position statement and attachments to the charging party. The EEOC states it considers the following information "confidential:"

  • Sensitive medical information (of an individual other than the charging party);
  • Social Security numbers;
  • Confidential commercial or confidential financial information;
  • Trade secrets information;
  • Non-relevant personally identifiable information of witnesses, comparators or third parties ( i.e., Social Security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses etc.); and
  • References to charges filed against the employer by other charging parties.

Assuming the EEOC’s field offices implement its announced policy change with some uniformity, the change represents a significant shift for employers dealing with EEOC offices that previously did not share position statements with charging parties during the investigation. Employers should re-evaluate their position statement practices, both because of the announced change in sharing position statements and the EEOC’s intention to have its staff determine confidentiality, make redactions and share such documents with charging parties.