EEOC Publishes New Nationwide Procedures for Employer Position Statements
February 22, 2016here. According to these new procedures, the EEOC will begin releasing employer position statements and “non-confidential attachments” to the position statements to a charging party upon request during the EEOC’s investigation. The charging party will be permitted to submit a response to the EEOC investigator. Notably, the EEOC procedures advise charging parties that they can submit this response in writing or they can simply call the investigator to discuss their response. Employers will not be able to receive a copy of the charging party’s response, even if it is submitted in writing. Historically, a charging party’s ability to obtain the employer’s position statement and/or exhibits varied depending upon the individual procedures of each EEOC District Office. These new nationwide procedures are intended to make the EEOC’s approach uniform across all offices. Under these new procedures, an employer that submits a position statement is directed to refer to, but not identify, the information it considers “confidential” and to provide that information in a separate attachment that will not be shared with the charging party. Justification must be included to explain the segregation of this information. This “confidential” information includes, and must be labeled as, one of the following:
- sensitive medical information (except for the charging party’s medical information);
- social security numbers;
- confidential commercial or financial information;
- trade secret information;
- non-relevant personally identifiable information of witnesses, comparators, or third parties, such as social security numbers, dates of birth in non-age cases, home addresses, phone numbers, etc.; or
- any references to charges filed against the employer by other charging parties.