Labor & Employment law - Employers only

Law Office of David Miklas, P.A.

EEOC Implements Nationwide Procedures for Releasing Employer Position Statements

The Equal Employment Opportunity Commission (“EEOC”) has implemented nationwide procedures that provide for the release of Respondent (employer) position statements to a Charging Party (employee or applicant) upon request during the investigation of a charge of discrimination.

During the investigation of a charge of discrimination, the EEOC typically requests that the employer submit a position statement and documents supporting its position.

The new nationwide EEOC procedures apply to all EEOC requests for position statements made to employers on or after January 1, 2016.

For years some EEOC investigators have provided employees with a copy of portions the employer’s position statement during the EEOC investigation. However, now the EEOC has implemented nationwide procedures, and employers should expect that the complaining employee can receive a copy of the Employer’s response to the EEOC charge. Fortunately, employers are at least able to designate some information as confidential which the EEOC will not share with the employee, if the EEOC investigator agrees that it is in fact confidential. Specifically, the new procedures provide that after the EEOC reviews the employer’s position statement and attachments on a specific charge, the EEOC staff may redact (black out) confidential information as the EEOC deems necessary prior to releasing the information to a Charging Party. Although some investigators may have done this in the past, it is now a consistent procedure that the EEOC says it will follow nationwide.

In order to determine if documents are confidential the EEOC now requires employers to segregate such confidential information when it submits it to the EEOC.

The EEOC’s new procedures provide for specific steps that employer should take when submitting information that is confidential – namely that it should be put into separately labeled attachments. The EEOC now advises employers that when responding to a charge of discrimination, they should segregate the following information into separate attachments and designate them as follows:

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.

The EEOC also advises employers that when they submit a position statement, that position statement itself should only refer to, but not identify information that the employer asserts is sensitive medical information, or confidential commercial or financial information.

The EEOC now also directs employers to upload their position statement and attachments into the “Respondent Portal.”

The EEOC’s new procedures make clear that although the Charging Party can obtain a copy of the documents the employer provides during an investigation, the Charging Party’s rebuttal to the employer’s response will not be provided to the employer during the investigation. The employer will not be able to obtain from the EEOC the employee’s rebuttal until after the employee has filed a lawsuit against the employer in federal or state court.

The EEOC states that it is being consistent by releasing the first formal document received from the Charging Party, the Charge, and the first formal document received from the Respondent, the Position Statement.

The EEOC website contains additional details concerning these new procedures, including a Q & A for employers and also a resource guide for employers called, “Effective Position

Statements,” at http://www.eeoc.gov/eeoc/newsroom/release/position_statement_procedures.cfm

If you are a Florida business and you receive a charge of discrimination from the EEOC or the FCHR, you should call the Law Office of David Miklas, P.A. immediately if you need help. We can be reached by email or phone at 1-772-465-5111.

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