With little fanfare, the EEOC quietly announced on February 18, 2016 its adoption of new "Nationwide Procedures for Releasing Respondent Position Statements and Obtaining Responses from Charging Parties." Importantly, the Nationwide Procedures retroactively apply to all EEOC requests for position statements made on or after January 1, 2016. Pursuant to the Nationwide Procedures:
"EEOC will provide the Respondent's position statement and non-confidential attachments to Charging Parties upon request and provide them an opportunity to respond within 20 days. The Charging Party's response will not be provided to Respondent during the investigation." (emphasis added).
Employers often produce highly sensitive materials in defense of an EEOC Charge, with assurances that EEOC files are confidential. For example, employers often provide confidential comparator information concerning other similarly-situated employees to demonstrate consistent, non-discriminatory approach in cases of alleged disparate treatment. Employers also sometimes provide the EEOC with protected commercial and trade materials as exhibits to these position statements. Although it is not unheard of for the EEOC to provide a Charging Party with some of the information submitted by an employer in its Position Statement to get his or her take on the defenses asserted by an employer, the wholesale production of the position statement itself and its supporting documents represents a sea change in practice. If included with a position statement, "eyes-only" confidential company information could go directly to an individual who is, by definition, disgruntled, with no clear protections as to how those materials can be used. In litigation, these materials are disclosed to a private party only after iron-clad and detailed protective orders are put in place. Based on the Nationwide Procedures, this information is available to any all Charging Parties simply "upon request" with no provisions that the information be kept confidential.
But all is not as it seems. On the other hand, Charging Parties are often in denial about the legitimate, non-discriminatory basis of a personnel decision. As such, giving a Charging Party and their legal counsel access to the employer's position statement and accompanying exhibits allows for a playing field where the continued prosecution of an EEOC charge — or of the filing of a subsequent lawsuit — is no longer due to the worker's misapprehension or inability to face the reality of the employer's defense. In other words, in many cases, this may assist an employer by educating a worker and his or her lawyer about the weaknesses in their case and eliminate the filing of lawsuits.
Implications for Employers
Based on the Nationwide Procedures, employers must consider being far more measured about what is contained in, or attached to, position statements given that they likely will end up in a former employee's hands. Indeed, the Nationwide Procedures could actually result in more EEOC-initiated subpoena actions, as employers must be more concerned about who will ultimately have access to their confidential documents and may be less willing to voluntarily provide certain information in a position statement.
How the Nationwide Procedures will play out in practice remains to be seen, including whether other information shared during an investigation (e.g., responses to additional requests for information) will also be provided to Charging Parties. Stay tuned, as we will report any updates as they develop.
Readers can also find this post on our EEOC Countdown blog here.
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