As many employers know, one of the first steps in responding to an EEOC charge filed by a current or former employee is to put together a position statement to refute the complainant’s allegations and otherwise support the employer’s position. Though the practice varied widely across the nation, employers in many jurisdictions had an expectation that their position statements remained confidential and were not shared with complainants. That all changed last week, as the EEOC unveiled new nationwide procedures—retroactive to January 1, 2016—providing for the release of employers’ position statements (and non-confidential attachments) to complainants and their representatives, upon request, during the investigation of a charge of discrimination. The Nationwide Procedures and related Q&A’s can be found here.
While this news is not earth-shattering in some places, and this procedure is routine with other agencies (e.g., OSHA), the announcement is a significant development—representing a drastic change in many locales—since employers often include highly sensitive material in their EEOC position statements (and accompanying exhibits) such as, for example, comparator information regarding other employees as well as the employer’s confidential commercial, financial and/or trade secrets information. The Nationwide Procedures provide that if an employer relies on confidential information in its position statement, it should submit that information in separately labeled attachments. (With the EEOC’s new Digital Charge System, employers may upload position statements and attachments into a digital charge file rather than faxing or mailing the documents.) After the EEOC reviews the employer’s position statement and attachments, EEOC staff may redact confidential information as necessary prior to releasing the information to a complainant and his or her representative.
The EEOC instructs employers, in their position statements, to refer to, but not identify, information deemed confidential. And if an employer relies on confidential material in its position statement, it should segregate the following information into separate attachments and designate them as follows:
- Sensitive medical information (except for complainant’s medical information)
- Social Security Numbers
- Confidential commercial information
- Confidential financial information
- Trade secrets information
- Non-relevant personally identifiable information of witnesses, comparators or third-parties (g., social security numbers, dates of birth in non-age discrimination cases, home addresses, personal phone numbers, personal email addresses, etc.)
- Any reference to charges filed against the employer by other complainants.
Employers are to provide an explanation justifying the confidential nature of the information contained in the attachments. The EEOC will review attachments designated as confidential and consider the justification provided. The agency warns that it will not accept blanket or unsupported assertions of confidentiality.
What’s more is that this new spirit of transparency is not exactly reciprocal. In other words, complainants are afforded an opportunity to respond to employers’ position statements in writing or otherwise within 20 days. Complainants’ written responses, however, will not be shared with employers. The EEOC justifies this approach by noting that each side sees the other’s “first formal document,” i.e., the complainant’s charge and the employer’s position statement (and non-confidential attachments). However, as complainants’ charges are often fairly “bare-bones,” the rule prohibiting disclosure of complainants’ written responses to employers essentially amounts to free discovery for complainants whereby employers are compelled to lay all of their cards on the table, while complainants’ evidence remains a mystery to employers.
The EEOC provided little explanation in announcing the Nationwide Procedures, stating that the new procedures provide for a consistent approach to be followed in all EEOC regional offices, which “enhances service to the public.” The EEOC also indicated that the Nationwide Procedures will also provide the agency with “better information from the parties” to strengthen its investigations. One potential positive impact of the Nationwide Procedures (wishful thinking perhaps) is earlier resolution to employment disputes based on a complainant’s (and his or her counsel’s) review of an employer’s strong evidence where the complainant had previously been in the dark or forced to rely on agency staffers’ interpretation of the evidence. How this plays out remains to be seen. One thing is for sure, however: since there is no longer an expectation of confidentiality, employers ought to be more circumspect in what they elect to include in position statements and attachments so as not to overshare.