You may have missed the EEOC’s subtle announcement that changes how employers’ position statements are handled. The EEOC rolled out nationwide procedures that apply to all EEOC requests for position statements made to employers on or after January 1, 2016.
After a Charge of Discrimination is filed with the EEOC, the employer is required to either submit to mediation or provide a position statement. The position statement is an employer’s first chance to give its account of the events regarding the alleged violation. After reviewing the Charge and the employer’s position statement, and conducting an investigation, the EEOC typically determines whether, in its view, harassment, discrimination, or retaliation is likely to have occurred.
Under the revised policy, an employee can now ask for the employer’s position statement and any non-confidential attachments while the Charge is pending. Prior to the revision, an employee would have to wait until he or she filed a lawsuit against the employer to request a copy of the employer’s position statement. It is critical for employers to note that the revised policy is not a two-way street because the EEOC will still only provide employers with the Notice of Charge and the Charge of Discrimination itself.
The new EEOC procedural guidelines apply to any non-confidential attachments accompanying a position statement. The EEOC may redact confidential information before providing the position statement to the employee. It is critical for employers to remember to clearly label confidential information within or attached to the position statement. Within the announcement, the EEOC advises employers to separately label attachments containing confidential information and include an explanation of the confidential nature.
The EEOC has posted separate Q&A pages for charging parties/complainants and employers/respondents, addressing issues of importance to each side, and outlining the Commission’s preferred methods for the submission of a position statement and any response to the same. Employers should, as always, thoughtfully draft position statements being careful to accurately articulate the reasons for the adverse action under investigation. Shifting rationales could be enough to establish pretext and expose the employer to liability. It is necessary for employers to fully understand the facts surrounding the Charge before responding. Remember that the position statement may be used by the employee in any future litigation, thus employers should retain experienced employment law counsel to assist in any EEOC investigation.