The Equal Employment Opportunity Commission (EEOC) recently implemented a new procedure that allows Charging Parties to request and obtain the Respondent employer's position statements and non-confidential attachments during the investigation of the charge of discrimination. The EEOC will not, however, release the Charging Party's response to the Respondent's position statement.

Best Practices

• Protect your confidential information.
  • Don't provide more information than necessary. Providing sufficient detail and information is essential to a no-cause finding, as well as to prevent a prolonged investigation. In light of the new procedure allowing Charging Parties to access the employer's position statement and supporting documents, employers should narrowly tailor their position statements to provide only the information necessary to respond to the Charge.
  • Separately attach and label confidential information. To the extent possible, employers should refrain from including confidential information in a position statement. If producing certain confidential information is necessary, employers should produce the confidential information in separately labeled attachments. They should also specifically and conspicuously identify as "confidential" each document it produces.
  • Redact extraneous confidential information and explain why the attached information is confidential. Employers should include a statement describing why the separately labeled material is confidential because the EEOC has discretion in determining whether the confidentiality label is justified.  The EEOC will not accept blanket or unsupported assertions of confidentiality.  As a precautionary measure, employers should carefully redact all unnecessary confidential information from attached documents.
• Do not upload anything until you are completely ready to submit. Due to the EEOC's new electronic portal system of submitting position statements, employers should refrain from uploading any documents to the portal unless the documents are finalized. Do not take any chances with documents being submitted inadvertently. Once a document is uploaded and submitted to the EEOC's portal, the employer cannot recall it. The investigator and, potentially, the Charging Party, may review the submitted documents.

Employers should remember that any information and documentation they provide to the EEOC in connection with a Charge of Discrimination can, and likely will, end up in the hands of the Charging Party and his/her counsel. While employers should still defend themselves vigorously, they should cautiously submit information and documents to the EEOC.

You may find more details about the EEOC's changes in procedures here.