By: Daniel Finerty & Oyvind Wistrom

Employers that have endured the Equal Employment Opportunity Commission’s charge process concerning allegations of discrimination, harassment or retaliation know that an effective, persuasive position statement responding to a charge is critical to securing a successful outcome. For years, employers could be assured that the EEOC would not share its position statement or attachments with a charging party. In doing so, this procedure complied with Section 709(e) of Title VII, which provides:

It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than one year.

Notwithstanding this statute, the Commission announced a reversal of course, as of January 1, 2016, and advised that it intends to release employer position statements:

EEOC has implemented nationwide procedures that provide for the release of Respondent position statements and non-confidential attachments to a Charging Party or her representative upon request during the investigation of her charge of discrimination. … These procedures apply to all EEOC requests for position statements made to Respondents on or after January 1, 2016. … The new procedures provide for a consistent approach to be followed in all of EEOC’s offices, which enhances service to the public. The procedures will also provide EEOC with better information from the parties to strengthen our investigations.

In contrast to this new practice, the Commission will not share the charging party’s position statement with the employer. While the Commission has recognized that employer EEO-1 reports are confidential under Section 709(e) (“[a]ll reports and information from individual reports will be kept confidential, as required by Section 709(e) of Title VII. Only data aggregating information by industry or area, in such a way as not to reveal any particular employers statistics, will be made public.”), it has not explained this new interpretation or how Section 709(e) permits its one-sided disclosure of employer position statements.

The protections for information and documents deemed “confidential” by an employer is limited. The Commission’s clear delineation of the information it will consider confidential is limited to sensitive medical information, social security numbers, confidential commercial or financial information, trade secrets information; non-relevant personally identifiable information of witnesses, comparators or third parties (for example, social security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc.), and any reference to charges filed against the employer by other charging parties. “Sensitive medical information” excludes the charging party’s medical information relating to the investigation. It is critical for employers to consult with labor and employment counsel to correctly categorize confidential information and justify such designation(s) to ensure confidentiality can be secured. “[T]he agency will not accept blanket or unsupported assertions of confidentiality.”

Further, upon receipt of information deemed confidential by an employer, the Commission has indicated that it will not withhold; rather, “EEOC staff may redact confidential information as necessary prior to releasing the information to a Charging Party or her representative.”

Employers need to be mindful of the Commission’s new procedure when responding to EEOC discrimination charges. Confidential information should be withheld (when permissible) or should be designated as “confidential.” Additionally, employers should keep in mind, when drafting position statements, that a charging party or his or her attorney may receive a copy of the position statement and any attachments.

If you have questions about this new practice by the EEOC, please contact Daniel Finerty, Oyvind Wistrom, or your Lindner & Marsack contact attorney at 414-273-3910.