Hunton Retail Law Resource

As reported on the Hunton Employment and Labor Law Blog, the Equal Employment Opportunity Commission (“EEOC”) has implemented nationwide procedures which require all EEOC offices to release copies of an employer’s entire position statement, together with all non-confidential documents submitted in support of the position statement, to an employee who has filed a discrimination charge, or his or her representative (including attorneys). These procedures apply to all position statements requested after January 1, 2016. Previously, such disclosures were made in the discretion of the particular field offices or investigators, and practices were inconsistent. As often as not, EEOC investigators might summarize the employer’s evidence and arguments for the employee, in order to solicit the latter’s response.

The EEOC claims these new procedures are intended to create uniformity and greater transparency in the handling of discrimination charges throughout the country. However, because the EEOC does not intend to furnish employers with the employees’ responses to the position statement, employers will not benefit equally from a fuller exchange of information.

The following material will not be turned over to employees:

• sensitive medical information;
• confidential commercial or financial information;
• trade secrets;
• non-relevant personally identifiable information of witnesses, comparators or third parties (such as social security numbers, addresses, phone numbers); and
• references to charges filed against employers by other charging parties.

The EEOC now advises employers to separate and appropriately label confidential information that is submitted in support of a position statement (for instance, in a separate attachment labeled “Confidential Commercial”). Whether the EEOC will, in every instance, accept the employer’s characterization of material as confidential is unknown.

Employers should consider the strategic implications of these new charge-handling procedures, particularly because attorneys for employees now may have access to what is, in essence, early discovery. One potential benefit of such early disclosures is the opportunity to educate employees and their counsel about weak cases, thereby forestalling litigation of meritless claims. Conversely, however, employers should bear in mind that information produced in a position statement may have the effect of alerting counsel to new theories of recovery and potential new plaintiffs – particularly when the EEOC has asked for information about comparators. Position statements should be crafted and/or reviewed by legal counsel with these considerations in mind.