March 04, 2016
The U.S. Equal Employment Opportunity Commission ("EEOC") recently announced its adoption of new nationwide procedures that the allow release of respondent position statements and non-confidential attachments to charging parties upon request. Importantly, the procedures retroactively apply to all EEOC requests for position statements made on or after January 1, 2016. Although the EEOC staff may redact confidential information as necessary before releasing the position statement, there is no guarantee the information will be redacted. Therefore, if a position statement includes confidential information, the respondent should take great care to segregate that information in separate attachments and clearly label such as "Confidential". Respondents should also be prepared to justify the need to shield such information as the EEOC states it will not accept unsupported assertions of confidentiality. Finally, if the charging party requests a copy of the position statement, the EEOC affords the charging party with the opportunity to respond within 20 days. Significantly, however, the charging party's response will not be provided to respondent during the investigation. Employers should keep these new procedures in mind when responding to EEOC charges.