EEOC Unlocks the Vault of Secrecy for Employees

The Equal Employment Opportunity Commission ("EEOC") has just announced some fairly big changes to their complaint process.  As of the January 2016, 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 upon request.

Below is [a portion of] 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 now send notification to charging parties, letting them know that they may request Respondent position statements and supporting documents, by writing to the investigator assigned to the case.  The new procedures, which will apply to all position statements requested on January 1, 2016 or later, also allow a charging party 20 days to reply to the employer’s charge response. The EEOC will not allow an employer to access the charging party’s reply.

Prior to this policy change, a charging party generally did not have access to an employer’s charge response until after the charge was dismissed and the complainant or his representative requested the agency’s file under FOIA or Section 83 of the EEOC Enforcement Manual. The new procedures should serve to shed some light on the employer’s litigation strategy, equalizing the playing field for grievants who were previously in the dark as to the nature of the defendant employer’s explanations of its own behavior and what, if any, allegations were being leveled back at them.  It should also help plaintiffs and their counsel craft intelligent responses to these defenses in their initial complaints.

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