The EEOC has implemented new, nationwide procedures allowing a charging party and/or her representative to request immediate access to the employer’s position statement. More than ever, employers need to carefully consider what to disclose in each position statement. In particular, employers need to take steps to properly identify confidential information to avoid inadvertently disclosing it to the charging party.
On February 18, 2016, the EEOC unveiled the new procedures for releasing respondents’ position statements to charging parties. The procedures apply to all position statements filed after January 1, 2016.
Key Provisions of the Procedures
In summary, the Procedures provide:
- >Position statements and non-confidential exhibits will be shared with the Charging Party upon request. The EEOC will inform the Charging Party of the right to request these documents.
- The Charging Party will have 20 days in which to respond to the employer’s position statement. The Charging Party’s response will not be shared with the Respondent.
- If the Respondent wants to keep confidential any information accompanying or referred to in the position statement, the following steps must be followed:
- Confidential information must be marked as confidential;
- Confidential information must be segregated; and
- The identification of information as confidential must be justified.
The EEOC will not accept blanket assertions of confidentiality but instead will consider the justifications offered by the Respondent. Only the following categories of information are listed as meeting the EEOC’s definition of confidential: Sensitive medical information, other than that of the Charging Party; Social security numbers; Confidential financial or commercial information; Trade secrets information; Personally identifiable information of witnesses, comparators or third parties that is not relevant to the charge, such as phone numbers, home addresses, etc.; and other charges against the Respondent.
Finally, the EEOC has moved to an electronic system. Initial notification of all charges will now be made via email, and communication and responses will be made through the EEOC’s Digital Charge System. The initial email sent by the EEOC contains a copy of the charge and instructions regarding how to use its online portal.
Given the tight timelines involved with the charge process and the EEOC’s reluctance to grant extensions, it is important to ensure the EEOC has up-to-date contact information for your company. Absent notification to the contrary, the EEOC will send notice of a charge to the person within your organization who last submitted EEO-1 information. We have already discovered a circumstance where charge notices were being emailed to someone who had left the company six years earlier.
To keep confidential information from being inadvertently shared with the charging party, separately identify each exhibit meant to be kept confidential, then separately mark and attach the information. For example, a position statement arguing that your company has accommodated other disabled employees would read as follows: “Company X successfully engaged in the interactive process and accommodated 10 other employees with the same medical condition as Charging Party. See Confidential Exhibit A (list of other employees with the same medical condition who have been accommodated).” Then, attach to the position statement a cover sheet marked “Confidential Exhibit A – Sensitive Medical Information – Do Not Disclose to Charging Party” followed by the list of employee names, which should also be marked as “Confidential Exhibit A.”
Describe within the position statement and include as an attachment your organization’s anti-harassment and discrimination policies, as well as any procedure for reporting harassment or discrimination. If the charge involves a claim of disability discrimination, include your policy and procedure for accommodating disabilities. Do the same for each specific kind of harassment or discrimination alleged.
Although including a description of any investigation that took place and actions taken as a result is advisable, be careful not to share documents or information that is protected by the attorney-client privilege. If you do, the privilege will be waived.
Remember, although the position statement is an opportunity to share your story, think carefully about what you do and do not want the charging party to know, since they now have the opportunity to respond directly to your position statement. Share only the essential facts. The EEOC helpfully suggests making that story clear, concise, complete and responsive. See the EEOC’s notice to Respondents regarding Effective Position Statements. Keeping that advice in mind as you draft your response should prove helpful in making a compelling case to both the EEOC and the charging party.
Given the new, complicating factors involved in drafting position statements, it is advisable to seek the counsel of an attorney who is experienced in responding to EEOC charges.