The Equal Employment Opportunity Commission (EEOC) has implemented significant new procedures that affect employers. In the course of the EEOC’s investigation of charges of discrimination, the Respondent/Employer’s position statement may now be released to the Charging Party.
Pursuant to these new procedures, the Charging Party, not automatically but upon request to the EEOC, is permitted to receive the Employer’s entire position statement, as opposed to simply a summary, and any non-confidential, attached documents. Subsequently, the Charging Party is granted 20 days to provide to the EEOC a response to the Employer’s position statement.
However, the Employer is not permitted to access the Charging Party’s response during the investigation. Although the Charging Party will gain insights into the Employer’s arguments and case strategy, the Employer must anticipate how the Charging Party will respond and then develop its rebuttal with little to no information.
These procedures are retroactive and apply to all EEOC requests for position statements made to employers on or after January 1, 2016.
Employers should now expect that Charging Parties can, and more than likely will, access Employer position statements. Employers are encouraged to assume extra care with regard to confidential information, such as sensitive medical information, Social Security numbers, commercial or financial information, trade secrets. Per the EEOC, if the Employer must submit such confidential information, it should do so in carefully labeled, separate attachments with explanations justifying the confidential nature.
For more information, see the EEOC’s “Questions & Answers for Respondents on EEOC’s New Position Statement Procedures” by clicking here.
FHKA routinely defends employers before the EEOC and the Ohio Civil Rights Commission, as well as in subsequent legal action in Court.