Tuesday, February 23, 2016

EEOC Implements New Procedures for Releasing Respondent Position Statements and Obtaining Responses from Charging Parties

The Equal Employment Opportunity Commission ("EEOC") recently announced some fairly big changes to their complaint process.  As of the first of this year, upon request, the EEOC will release Respondent position statements and non-confidential attachments to a Charging Party or her representative during the investigation of her charge of discrimination.

From the EEOC's press release on the new procedure:
During the investigation of a charge, EEOC may request that the Respondent employer submit a position statement and documents supporting its position. EEOC's resource guide for Respondents, "Effective Position Statements," advises Respondents to focus their position statements on the facts relevant to the charge of discrimination and to identify the specific documents and evidence supporting its position.  A position statement focused on the allegations of the charge helps EEOC accelerate the investigation and tailor its requests for additional information.

A Respondent generally has 30 days to gather the information requested and to submit its position statement and attachments to the EEOC. If the Respondent relies on confidential information in its position statement, it should provide such information in separately labeled attachments. With EEOC's new Digital Charge System, Respondents can upload their position statement and attachments into the digital charge file rather than faxing or mailing the documents.
After EEOC reviews the Respondent's position statement and attachments on a specific charge, EEOC staff may redact confidential information as necessary prior to releasing the information to a Charging Party or her representative.

EEOC will provide the Respondent's position statement and non-confidential attachments to Charging Parties upon request and provide them an opportunity to respond within 20 days. The Charging Party's response will not be provided to Respondent during the investigation.
The EEOC will notify charging parties of their ability to request Respondent position statements and supporting documents and if the charging party or their representative wants to view these, they request it through the investigator assigned to the charge.  Further, the EEOC has identified the following items as potentially "confidential":
  • 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.

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