EEOC Allows Release of Position Statements to and Response by Charging Party

March 8, 2016

The U.S. Equal Employment Opportunity Commission (EEOC) implemented significant procedural changes regarding position statements. The new procedures apply to all EEOC requests for position statements made on after January 1, 2016, and, in an effort to standardize the investigation process, the procedures apply uniformly across the country.

What Are Position Statements?

Once an employee files a charge with the EEOC, the EEOC initiates an investigation of the Charging Party’s allegations. During the course of the investigation, the EEOC may request that the Respondent employer submit a position statement in which it responds to the Charging Party’s allegations and provides documentation supporting its position. Until January 1, 2016, most EEOC districts would not release the position statement to the Charging Party. Instead, these EEOC districts would send a summary of the Respondent’s position to the Charging Party. However, as of January 1, 2016, the EEOC implemented new, streamlined procedures that affect every district in the country.

Release of Respondent’s Position Statement

Under the new procedures, the EEOC will release the Respondent’s full position statement and non-confidential attachments to the Charging Party upon request. Previously, only a minority of jurisdictions (including Houston) provided the entire position statement. Now, position statements will be released in every jurisdiction in the United States. Employers in all jurisdictions can now assume that a Charging Party will receive the employer’s position statement.

Charging Party’s Response to Position Statement

In addition, the EEOC now allows the Charging Party to submit a response to the position statement within 20 days after filing. The Charging Party’s response will not be provided to the Respondent during the investigation. As a matter of discretion, the EEOC may request additional information to address the Charging Party’s response. Accordingly, Respondents should try to anticipate and refute the rebuttal arguments that may appear in the Charging Party’s response.

What Should Employers Do To Protect Confidential Information?

Respondents should use caution when relying on confidential information in the position statement and simply refer to, but not disclose, confidential information where possible. If confidential information must be produced, Respondents should segregate confidential information into separate attachments clearly labeled based on their confidentiality designations, including:

  • sensitive medical information
  • social security numbers
  • confidential commercial or financial information
  • trade secret information
  • non-relevant personally identifiable information of witnesses
  • any reference to other charges filed against the Respondent or Charging Party, unless the other charges were brought by the Charging Party

In addition, the Respondent should provide the EEOC with an explanation justifying the confidential nature of the information. The EEOC has warned that it “will not accept blanket or unsupported assertions of confidentiality.”

Additional Resources

The EEOC’s recommendations regarding effective position statements.

The EEOC’s “Questions and Answers for Respondents on EEOC’s New Position Statement Procedures.”

For further information or questions about the information contained in this Legal Alert, please contact the authors, your McGuireWoods contact or a member of the firm’s labor and employment group.