Employers Beware of the EEOC’s New Position Statement Procedures

Danielle Barbour Wilson Danielle Wilson, Employment Law, Thomas Filopoulos

The U.S. Equal Employment Opportunity Commission (“EEOC”) has implemented new nationwide procedures regarding the disclosure of position statements which may impact how some public and private employers respond to EEOC charges.

In the past, an employer’s position statement and supporting documents submitted to defend an EEOC Charge would only be disclosed to the Charging Party after the EEOC’s investigation of the Charge concluded. Previously, requests for responding employers’ position statements were most commonly made by Charging Parties in the form of a Freedom of Information Act (“FOIA”) request which would be granted only after a right-to-sue letter was issued and litigation commenced.

The EEOC’s recent policy change now allows the employee/Charging Party to request a copy of the employer’s EEOC position statement and supporting documents during the EEOC’s investigation and prior to the filing of a lawsuit. These changes apply to all EEOC requests for employer position statements on or after January 1, 2016. While the EEOC will disclose position statements to Charging Parties during the investigation process, the EEOC will not disclose rebuttal statements submitted by Charging Parties to responding employers.

Although the EEOC will conduct a review to determine whether confidential information has been requested, employers will have to rely on the EEOC’s independent assessment to protect its confidential information. Therefore, responding employers should pay close attention to EEOC guidance regarding how they can assist the EEOC in making confidentiality determinations. The EEOC advises that position statements should “refer to, but not identify” information that the employer believes to be confidential. When the employer relies on confidential information in their position statement, such information should be provided in separate attachments to the position statement under the appropriate confidentiality labels provided by the EEOC. According to the EEOC, confidential attachments should be labeled as either “Sensitive medical information,” “Confidential commercial information,” “Confidential financial information,” or “Trade secret information.”

These new rules are particularly troublesome for public employers in North Carolina, such as city and county governments, who are bound by statute to protect the confidential personnel information of their employees and are faced with criminal penalties for improper disclosure.[1] While these statutes allow for the inspection of confidential personnel information by federal and state agency officials (such as the EEOC) when such inspection is deemed to be “necessary and essential to the pursuance of a proper function of the inspecting agency,” public employers should limit the disclosure of information about other employees who are not directly involved in the Charge process. Such information is often disclosed as “comparator” information to refute a Charging Party’s claim that he or she was singled out or treated differently than other employees on the basis of a protected characteristic such as age, race, or sex.

In light of these new procedures, public employers are reminded to provide only the information necessary to present a clear, concise position statement without unnecessarily disclosing confidential personnel information. Should the disclosure of confidential personnel information be necessary, responding employers should ensure that any and all confidential information is provided in a separate attachment that is properly labeled pursuant to the EEOC’s established guidelines. All employers, public and private, are encouraged to seek counsel when drafting position statements and other submissions to the EEOC.

[1] See N.C. Gen. Stat. § 160A-168 (Privacy of city employee personnel records) and N.C. Gen. Stat. § 153A-98 (Privacy of county employee personnel records).