In a shift that could impact how employers (and their legal counsel) respond to charges of discrimination, the U.S. Equal Employment Opportunity Commission (EEOC) has announced that it will disclose the employer’s position statement and non-confidential documents to parties who file charges of discrimination. Notably, the EEOC will not be providing the charging party’s response or rebuttal statements to an employer, which smacks of unfairness in a procedure that is intended to increase transparency in the investigatory process. EEOC Commissioner Chai Feldblum, in response to a tweet between popular and insightful HR blogger, Eric_B_Meyer and myself, stated that she hopes the agency will take employer’s concerns about the unfairness “seriously.”
If an employer relies on confidential information in its position statement, such as documents from an employee’s personnel file, witness statements, medical information, or other company proprietary documents, it should provide the documents in a separate attachment to the position statement and labeled appropriately.
In light of this new procedure, employers and their counsel should think carefully about the type of information set forth in the position statement and as exhibits, recognizing that unless designated confidential, the information will be disclosed to the charging party without any limit on how the charging party may use or disclose (on social media or elsewhere on the internet), the company’s information. Care should be taken to ensure that properly confidential documents are marked so and submitted separately. Equally as important, the business community should make its voice heard to the EEOC that fairness dictates that if the charging party provides any rebuttal evidence or response to the employer’s position statement, that information be disclosed in the investigation.