The Equal Employment Opportunity Commission (“EEOC”) has issued new, nationwide procedures allowing a Charging Party or his/her representative to request copies of Respondent employer’s position statement and non-confidential attachments during the investigation of his/her charge of discrimination. The new procedures apply to all position statements submitted after January 1, 2016. Employers must be cognizant of this new rule and strategically craft positions statements with an eye towards disclosure. Specifically, employers need to carefully separate confidential information into separately labeled attachments to avoid inadvertent disclosure to the Charging Party.
The EEOC has prepared a “Questions and Answers for Respondents on EEOC’s New Position Statement Procedures” which explains the new procedures. To summarize, in order to comply with the new rules, Respondents must submit a position statement within thirty (30) days that explains its “version of the facts” and identifies the “specific documents and evidence supporting its position.” If the Respondent refers to confidential information in the position statement, it should note the exhibit as “confidential.” For instance, “Confidential Exhibit A.” It must then create separate labeled attachments titled, as applicable, either: “Sensitive Medical Information,” “Confidential Commercial Information,” “Confidential Financial Information,” or “Trade Secret Information.”
The EEOC further defines “confidential information” as follows:
- Sensitive medical information (except for the Charging Party’s medical information)
- Social Security Numbers
- Confidential commercial or confidential 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, home addresses, personal phone numbers, personal email addresses, etc.
- Any reference to charges filed against the Respondent by other charging parties
In addition to segregating and identifying the confidential information as attachments, the Respondent employer must provide a justification for why it is identifying information as confidential. It will then be up to the EEOC to consider the justification and make the final determination on what is confidential and should be redacted in the version released to the Charging Party.
After the position statement and non-confidential attachments are submitted, the EEOC will notify the Charging Party of his/her right to request same. The Charging Party will then have twenty (20) days to respond to the employer’s position statement. Notably, the Charging Party’s response will not be provided to the employer.
Although the timeframes are short, Respondents should pay close attention to how they are identifying and attaching confidential information to its position statement. Be sure to refer to the exhibit as “confidential” in the position statement, while also labeling the attachment as such. Additionally, when describing the nature of an investigation, be particularly aware of any attorney-client privileged information that may arise. Disclosure of this information would constitute a waiver of the privilege. Overall, employers must recognize that they will be disclosing information to the Charging Party at a much earlier stage in the dispute than in the past.
For questions regarding the new EEOC procedure, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.