EEOC to Give Charging Parties Copies of Employer Position Statements

By: Melanie M. Dunajeski, Drewry Simmons Vornehm, LLP

The U.S. Equal Employment Opportunity Commission announced January 18th,  that upon request, it will now supply employees who have filed a Charge of Discrimination with a copy of any Position Statement and supporting documents that the employer has submitted to the EEOC to refute the charge.  All the employee has to do is ask for a copy. Does the employer get a copy of what the employee has submitted? No—this is a one-way street, which makes it doubly important that employer submissions preserve available defense and take the steps necessary to protect confidential information from further disclosure.  The EEOC has a list of information that must be submitted separately and appropriately designated in order to preserve its confidentiality—such as sensitive medical information for persons other than the charging party, Social Security numbers, confidential commercial or financial information, trade secrets information, and certain personally-identifiable information concerning witnesses, comparators and third parties. Since Position Statements may be used by the employee as evidence in a subsequent employment discrimination lawsuit, it is more important than ever that employers make a thorough investigation and verify the accuracy of all facts.  The subject of confidential information must also be handled at the Position Statement phase—confidential information should not be included in the Position Statement, and documents containing confidential information should be included only as is necessary to protect the rights of the employer, and then only when they are submitted under the procedure that the EEOC has set out.  While many employers have managed the initial response to a charge of discrimination before this time, most employers will find it prudent to consult with competent employment law counsel with respect to the content and format of Position Statements going forward.  This new charging party access may also impact employer internal procedures for maintaining and securing documentation, and for avoiding possible retaliatory acts.  For more information, contact the Employment Law Group at Drewry Simmons & Vornehm, LLP.