News & Insights

EEOC’s New Procedures Regarding Employer’s Position Statements
February 24, 2016
by Brett Hummer

 

South Bend / Mishawaka, IN – Whether you are an HR professional for a publicly traded company or you operate a mom and pop shop, if your company has at least fifteen (15) employees, chances are that sooner or later one of your employees (past or present) will file a Charge of Discrimination against your company with the Equal Employment Opportunity Commission (“EEOC”).

When that happens, your business will likely be required to submit a Position Statement to the EEOC which addresses the employees’ allegations and demonstrates that the employment action taken did not violate the laws the EEOC enforces such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, as amended, the Equal Pay Act, and the Age Discrimination in Employment Act.

As the saying goes, you never get a second chance to make a good first impression.  A company’s Position Statement in response to an EEOC Charge is that first impression opportunity, and it is often determinative of how the EEOC will investigate the Charge and it will help shape the EEOC’s ultimate decision.  A concise, convincing, and well-documented Position Statement can reduce the risk that the EEOC will issue a probable cause finding in a given case, and further lay a good foundation for a viable defense should the company need to later defend its position in a lawsuit following the EEOC’s investigation.  A vague, generic, or undocumented position statement, on the other hand, may raise suspicions in the EEOC investigator’s mind and lead to a heightened investigation with greater scrutiny.  As the EEOC puts it, “An effective position statement is clear, concise, complete, and responsive.”  Nothing more and nothing less than that approach is usually the best course of action.

On February 18, 2016, the EEOC implemented new nationwide procedures which permit the release of an employer’s position statement and non-confidential attachments to the charging party (or the charging party’s attorney) upon request during the EEOC’s investigation.  These procedures apply to all EEOC requests to employers for position statements on or after January 1, 2016.

The new procedures state that if the employer relies on confidential information in its position statement, the employer should provide such information in separately labeled attachments.  According to the new procedures, the EEOC may then redact confidential information as necessary prior to releasing such information to the charging party or his or her representative or attorney.

The new procedures also include a series of questions and answers for employers in regards to confidential information which might be included in the position statement.  If confidential information is included in the position statement, the EEOC instructs employers to refer to, but not identify, the confidential information.  Such information should be included and explained in the separate attachments and labeled as follows as the case may be:

  • Sensitive medical information (other than the charging party’s information)
  • Social Security Numbers
  • Confidential commercial or confidential financial information
  • Trade secrets information
  • Non-relevant personally identifiable information of witness, comparators or third parties, for example, social security numbers, dates of birth in non-age cases, home addresses, personal phone numbers and personal email addresses
  • Any reference to charges filed against the employer by other individuals

Upon receiving these separately labeled attachments, the EEOC will then review the materials and the employer’s justification for why such materials were designated as confidential.  The EEOC states plainly in its new procedures it will not accept blanket or unsupported assertions of confidentiality, so the employer will need to provide a legitimate explanation for why such materials are, in fact, confidential and should be treated as such by the EEOC.

The EEOC’s new procedures can be found online here:  http://www.eeoc.gov/employers/position_statement_procedures.cfm

Employers should continue to take the time necessary to prepare and provide a well-drafted Position Statement in response to an EEOC Charge, as the EEOC’s procedures gives another nod to its prior guidance on “Effective Position Statements”, found here:  http://www.eeoc.gov/employers/position_statements.cfm.  The specific discriminatory acts as alleged in the Charge should be addressed by the employer, and the employer should be as specific as possible when providing dates, individuals involved, and employment actions taken.  Providing documentation supporting the employment actions and the applicable policies behind those decisions is also beneficial to show the employer’s position is well founded, keeping in mind that what you turnover to the EEOC will typically be provided to the charging party and can surface later during litigation if a lawsuit follows the EEOC’s investigation.

Employers with questions regarding the EEOC’s new procedures or interacting with the EEOC should always consult with experienced legal counsel.  The content of this article is for information purposes only, and neither contains nor should be considered legal advice.

 

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