EEOC Expands the Rights of Charging Parties to Obtain Employer Position Statements

Yesterday, the Equal Employment Opportunity Commission (EEOC) issued a press release announcing a major change in its policy regarding employer position statements.

When a complaint of discrimination is filed by the EEOC, the EEOC may request that the employer file a position statement giving its side of the story (along with supporting documentation).  The employer’s position statement then became part of the EEOC’s charge file. The new policy applies to cases where the EEOC sent the request for the position statement to the respondent on or after January 1, 2016.

Previously, the Charging Party could only obtain a copy of the charge file after a Notice of Right to Sue had been issued by the EEOC. The Charging Party would typically file a request under the Freedom of Information Act (FOIA) for the EEOC’s charge file.

Under the EEOC’s new policy, the EEOC will provide the employer’s position statement and non-confidential attachments to Charging Parties upon request. It will also provide the Charging Party an opportunity to respond within 20 days.

Upon reviewing the employer’s position statement and attachments, EEOC staff may redact confidential information as necessary prior to releasing the information to a Charging Party. When the EEOC requests position statements, it will ask respondents to segregate confidential information into attachments marked as confidential, to minimize the EEOC’s need to redact information.  It remains to be seen how much leeway employers will be given to mark information within their position statement and attachments as “confidential.”

The Charging Party’s response will not be provided to the employer during the investigation, although it may be obtained by the employer if and when the Charging Party files suit, either through FOIA or by means of discovery in litigation.

The text of the EEOC’s new policy is available here:

http://www.eeoc.gov/eeoc/newsroom/release/position_statement_procedures.cfm

The experienced attorneys at Bailey & Ehrenberg PLLC handle a wide variety of employment discrimination claims in litigation, and also provide counseling on employment law issues.  We can be contacted via www.becounsel.com or at 202-331-1331. This article is not intended to constitute legal advice and should not be relied upon for that purpose.


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