EEOC Publishes New Procedures Allowing Charging Parties to Receive Copies of Position Statements

The Equal Employment Opportunity Commission has implemented a new procedure—applying to all position statements requested January 1, 2016 or later—that will permit a charging party to receive the position statement an employer files in response to allegations of discrimination against it. The agency announced the new procedure in a press release last week.

According to EEOC, the new approach enables all field offices to follow the same procedures for providing position statements to charging parties. Prior to this policy, field offices used their own discretion to provide or not provide this information.

EEOC will allow respondent companies and their attorneys to label information as “confidential,” and such information may not be provided to the charging party. According to the press release, EEOC may also redact information it deems confidential before supplying it to a charging party.

The agency will provide the respondent’s position statement and non-confidential information to charging parties at their request, and allow charging parties 20 days to respond. However, the charging party’s response “will not be provided to the respondent during the investigation.”

“Now that the information-sharing process will be consistently applied by every EEOC office, it will be more important than before for employers and their attorneys to confer about confidential information—and clearly identify what is intended to be treated as confidential—before submitting a position statement,” says MSEC Director of Employment Law Services Tim Settle. “In some circumstances, the new process might benefit employers, because charging parties will now see the employer’s defensive argument, which may dissuade some from pursuing a claim.”