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The EEOC’s New Policy Regarding Disclosure of Position Statements Gives Employees the Last Word

The U.S. Equal Employment Opportunity Commission (“EEOC”) will now release an employer’s position statement and non-confidential attachments to an employee or other aggrieved party (“Charging Party”) during the investigation of his or her charge of discrimination. The EEOC announced this new nationwide policy on February 18, 2016. The new policy applies retroactively to all EEOC requests for position statements made to Employers on or after January 1, 2016.

Typically, when employers receive a charge of discrimination that has been filed with the EEOC, they are asked to provide a position statement in response to the charge within 30 days. A carefully-crafted position statement may go a long way in helping to obtain a dismissal of the charge with a finding of no probable cause from the EEOC. Position statements are often accompanied by exhibits containing sensitive employee information, company policies, and/or confidential company financial or business information.

In the past, in order for a Charging Party to gain access to an employer’s position statement, the Charging Party generally would have to submit a Freedom of Information Act request or go through the process listed in section 83 of the EEOC Compliance Manual. A “Section 83” request is a simple, less formal way for Charging Parties or employers to access charge files after the EEOC has completed its processing.

The EEOC’s new policy states that all field offices shall give Charging Parties, upon request, access to the employer’s position statement and non-confidential attachments during the investigation of a charge. If a Charging Party requests and receives the employer’s position statement, the Charging Party has an opportunity to respond to the employer’s position statement, orally or in writing, within 20 days. The EEOC will not, however, share the Charging Party’s response with the employer during the investigation.

The EEOC’s new policy further instructs that if an employer relies on confidential information in its position statement, it should provide the confidential information in separately marked attachments. After the EEOC receives the position statement, EEOC staff may redact confidential information as necessary prior to sharing the position statement with the Charging Party. The EEOC has identified certain information as confidential, including:

  • Sensitive medical information (except for the Charging Party’s medical information)

  • Social Security Numbers

  • Confidential commercial or financial information

  • Trade secrets information

  • Non-relevant personally identifiable information of witnesses, comparators or third parties, for example, social security numbers, dates of birth in non-age cases, etc.

  • Any reference to charges filed against the employer by other charging parties

In light of the EEOC’s new policy, employers should revisit their policies on submitting position statements. Because the information in a position statement will now be shared with Charging Parties, upon request, it is ever-more important to consult an attorney prior to submitting a position statement. The employee relations attorneys at DeWitt have a wealth of experience guiding employers through the EEOC process and drafting position statements addressing charges of discrimination brought under the various laws enforced by the EEOC.

For additional information or questions regarding this topic, please contact the author or your regular DeWitt employee relations attorney.

About the Author

Jordan Rohlfing is a senior associate at DeWitt LLP. She is an active member of DeWitt’s Litigation, Labor & Employment Relations, and Background Screening practice groups. She is dedicated to providing top-quality legal services for all of her clients. She regularly counsels businesses with respect to issues and claims that arise under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Wisconsin Fair Employment Act, the Family and Medical Leave Act, the Fair Labor Standard Act, the National Labor Relations Act, and many other federal and state laws related to discrimination, harassment, retaliation, and wage and hour issues, among others.

Contact Jordan by email or phone at (608) 283-5509.

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