The Equal Employment Opportunity Commission (“the EEOC”) has implemented new procedures for employer position statements that apply to all EEOC requests for position statements made on or after January 1, 2016.
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Under the new procedures, a charging party (the employee) can request that he/she be provided the employer’s position statement while the matter is pending before the EEOC. Previously, the employer’s position letter was available only after the completion of the investigation.
The new procedures also allow the charging party to respond to the employer’s position statement within 20 days from the receipt of the statement. This can be a written response, or an in-person or telephonic meeting with the investigator. While the new procedures allow the charging party to obtain the employer’s statement, if a written response is provided to the EEOC by the charging party, the employer will not be provided a copy. The EEOC may, however, contact the employer if additional questions arise due to the charging party’s response.
Digital Charge System
The EEOC has also adopted a Digital Charge System, which is a digital program that allows employers to use a secure portal to communicate with the EEOC through the charge process. Specifically, employers are able to use the system to download a charge, review and respond to an invitation to mediate, submit a position statement, and provide and verify their contact information.
Often, when responding to a charge, the responding party has concerns regarding what information will be provided to the charging party. The EEOC has provided additional information as to what will (and will not) be considered “confidential” information not disclosed to the charging party. Specifically, it “will not accept blanket or unsupported assertions of confidentiality” by employers. Rather, the following categories of information will be considered confidential by the EEOC:
- Sensitive medical information (except for the charging party’s medical information);
- Social Security numbers;
- Confidential commercial or confidential financial information;
- Trade secret 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, and personal email addresses; and
- Any reference to charges filed against the respondent by other parties.
All other information will be provided to the charging party. To maintain the confidentiality of the information, the employer must label it as such and place it in a separate attachment to the position statement.
Key Tips to Consider When Responding to an EEOC Charge
First (and foremost), never ignore the charge. While a charge does not mean that the EEOC has determined liability, it does mean that it has assigned an investigator to look into the complaint. Be prompt and cooperative. Review the paperwork and make a note of deadlines. If you believe you will need additional time to prepare a response, ask for an extension promptly. Also, notify your insurer of the charge. Insurance policies require insured parties to provide prompt notice of claims. Many employment-practices liability policies define claims to include discrimination charges. Failing to apprise the insurer of a charge could result in denial of coverage, not only for the charge but all subsequent legal claims.
Second, investigate the claim. In some states, a duty to investigate a complaint of discrimination, harassment or retaliation claim is a separate cause of action and the duty to investigate does not end upon the filing of the complaint. Talk to the parties involved (and document those conversations) and preserve relevant documents. This may require contacting technology staff to avoid routine purging of e-mails.
Third, maintain confidentiality. Instruct those involved to refrain from discussing the matter with individuals other than the person(s) charged with investigating the complaint and/or preparing the response. In addition, if the charging party is still employed, ensure that no retaliatory action is taken against him or her. Any disciplinary action proposed against the charging party should be carefully reviewed by human resources prior to any action being taken.
Fourth, prepare your response. In doing so, tell the story of your company. Most of the time, the investigator assigned will not know anything about your company. Take the time to introduce the investigator to your company, the policies you maintain and why you operate in a particular manner. Detail the circumstances surrounding the employment relationship and the reasons for adverse employment actions. Demonstrate any legitimate business reasons for an action taken. Below are a few key tips to consider when preparing the written response:
- Use documentation. If available, contemporaneous documentation can be the best way to support the actions undertaken by the company or, even better, discredit the charging party’s allegations.
- Highlight past decisions that are similar in nature. One of the best ways to demonstrate that a decision was not motivated by unlawful discrimination is to point to the same actions being taken against similarly situated employees who are not members of the charging party’s protected class.
- Highlight the good facts, but do not ignore the bad facts. Acknowledge the bad facts, but explain why they do not matter. Use your response to tell your story in a way that it makes it easy for the investigator to conclude there were no unlawful actions taken.
- Make sure the statements within the response are accurate. Have all individuals involved review the statement to verify its accuracy.
- Remember that it is likely that the charging party (and his/her attorney) will be given a copy of the response. Don’t include any information or make any statements in your position statement that you do not want stated in front of a jury someday.
Finally, be patient. The EEOC reported it took an average of 10 months to complete an investigation in 2015.