EEOC Enacts New Procedure Aiding Complainants

The Equal Employment Opportunity Commission recently announced new nationwide procedures, retroactive to Jan. 1, 2016, that provide certain informational advantages to individuals filing charges of discrimination against employers. Under the new rules, a charging party may request a copy of the employer’s position statement and nonconfidential attachments during the EEOC’s investigation. The charging party will then have an opportunity to respond, either verbally or in writing, to the employer’s position. (Previously, at least in many jurisdictions, a charging party had to wait until after the EEOC dismissed the charge to file a Freedom of Information Act request for the same information.) The informational advantage lies solely with the individual: a charging party’s response will not be shared with the employer during the EEOC’s investigation.

Employers should follow these best practices under the new EEOC procedures:

1. Separately attach confidential information and designate it as confidential. Provide an explanation justifying confidential treatment for each designated attachment. The EEOC may redact such confidential information prior to releasing the position statement and attachments to the charging party. The EEOC has identified the following as examples of confidential information that should be separately attached and designated:
• Sensitive medical information (except for the charging party’s information);
• Confidential commercial or financial information;
• Trade secrets information;
• Non-relevant personally identifiable information of witnesses, comparators or third parties (e.g., contact information, date of birth in non-age cases, social security numbers); and
• Any references to charges of discrimination filed against the employer by others.
2. Position statements may refer to the existence of confidential information, but they should not disclose the confidential information itself. Appropriately designated attachments may be redacted, but position statements will not be redacted.
3. Take a long view when notified about a charge of discrimination. Work closely with counsel to develop litigation defenses and strategy prior to filing a position statement so you do not “tip your hand” too early. Of course, when the facts favor the employer, it may be prudent to submit a more exhaustive response to dissuade future legal action by either the complainant or the EEOC. Savvy employees and their lawyers, however, will mine a position statement for clues and use what they learn from the employer’s EEOC submission both to persuade the EEOC of the merits of their charge and to craft better lawsuits once the EEOC administrative hurdle is passed.
4. Information and defensive theories provided in the position statement and attachments should be consistent with those provided later in litigation, which front-loads the employer’s burden to determine the facts and possible defenses.

These new procedures result in attendant potential pitfalls for employers. It is more important than ever for employers to engage counsel early in the EEOC administrative process to ensure that confidential information is kept confidential and position statements appropriately frame future litigation.