When employers receive a charge of discrimination from the Equal Employment Opportunity Commission (“EEOC”), they are normally asked to to submit a position statement with supporting affidavits responding to the allegations. A carefully prepared position statement may convince the EEOC to dismiss the charge and may lessen the possibility of a lawsuit being filed by the EEOC or the charging party. The response will often be accompanied by documents disclosing policies, personnel, and even financial or other business information, some of which the employer may consider to be confidential.
The EEOC’s 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, ranging from giving verbal summaries of the employer’s position, to providing the charging party with a copy of the position statement. If that did not take place, a charging party could gain access to an employer’s position statement after receiving a dismissal and notice of right to sue by submitting either a Freedom of Information Act request or a request under Section 83 of the EEOC Compliance Manual.
Under the new policy, the process will be uniform with all EEOC field offices giving charging parties access, upon request, to the employer’s position statement. The charging party will then have 20 days to submit a response despite the EEOC’s claim of retaliation. The EEOC will not reciprocate and provide a copy of the charging party’s response to the employer.
Employers responding to a charge should familiarize themselves with this new procedure, particularly as it relates to attachments containing confidential information. All attachments considered by the employer to be confidential need to be labeled as such and submitted as a separate attachment through the EEOC’s new “Digital Charge System.” The EEOC may redact confidential information before providing the position statement and attachments to the charging party.
The EEOC has stated that it considers the following information to be “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.
This new policy 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. In some instances, an employer may determine that confidential information should not be included in the position statement because of the risk that the EEOC will not make the necessary redactions and as a result, confidential information will be given to the charging party.