EEOC Adopts New Position Statement Procedures
For many years, the primary way that a charging party could obtain a copy of an employer’s EEOC’s position statement was through a Freedom of Information Act request following the resolution of the charge and closure of the case. As of January 2016, the Equal Employment Opportunity Commission (“EEOC”) implemented nationwide procedures that allow its offices to release employer position statements and non-confidential information to employees and their representatives during an ongoing investigation.
Under the new procedures, the charging party will now be notified of his or her right to request a copy of the employer’s position statement at the time he or she files a charge. In addition, the charging party will be generally be given twenty (20) calendar days from its receipt of the position statement to submit a verbal or written response to the employer’s position statement and any supporting evidence. The employer will not be provided a copy of the charging party’s response. However, the EEOC may request additional evidence from the employer after it receives the charging party’s response, if it feels it needs such information to complete the investigation.
Practically speaking, an employer should prepare its position statement, responding to the employee’s charge, with the expectation that it will be seen by the charging employee. As such, the employer should be vigilant to ensure that only relevant and factually supported information is contained in the position statement. Also, the documents relied upon to support an employer’s position should be carefully screened for any information that the employer does not want disclosed to the charging party.
The EEOC’s New Position Statement Procedures also require employers to submit confidential supporting documents in a specific format, or run the risk of the confidential information being exposed to the employee and/or her legal representative.
The first step towards preserving confidential information is identifying which documents contain confidential information and label them appropriately. The EEOC requires confidential information to be separated from the position statement as an attachment. The attachment should be clearly labeled identifying the type of confidential information in the document. To actually preserve confidential information, a statement explaining the confidential nature of the information must be submitted with the attachment. The EEOC will not consider an attachment to be confidential without a statement, or any support justifying the confidential nature of the information. Properly preserving confidential information is important at every step of communication with the EEOC because properly identified confidential information will not be released in a FOIA request.
Finally, effective January 1, 2016, employers may begin submitting their position statements via the new Digital Charge System, a secure online portal that the EEOC began piloting in May 2015 and has now implemented in all 53 of its offices. The Digital Charge System allows employers to upload position statements and supporting documents directly to the department, in real time.
Employers and their representatives who handle and respond to EEOC charges should make sure that they (a) become familiar with the EEOC’s new procedures for position statements; (b) become familiar with the new Digital Charge System; and (c) implement procedures to protect confidential information and make sure that position statements are being properly screened in light of the new procedures that allow for disclosure to the charging party.