The Equal Employment Opportunity Commission (EEOC) has adopted a new nationwide policy, effective January 1, 2016, that calls for the disclosure of an employer’s so-called “position statement” and all “non-confidential attachments” if requested by a charging party during the course of an investigation of a discrimination charge. Up until now, EEOC field offices generally had discretion as to whether to provide copies of position statements to charging parties, and only a limited number of offices did so as a matter of practice.
The new nationwide policy also provides that a charging party must be given the opportunity to submit a response to the employer’s position statement to the EEOC, but makes clear that the EEOC will not release this response to the employer during the course of the agency’s investigation. Again, up until now, there has been no set policy regarding charging party responses to employer position statements, and practices among EEOC’s field offices have varied.
As a result of the EEOC’s new nationwide policy, employers are well advised to be circumspect in determining what information to include within or attach to a position statement, as the EEOC reserves sole discretion to determine what information will be deemed “confidential.”
More information about the EEOC’s new position statement policy is available here.
Members of the Equal Employment Advisory Council (EEAC) can read more here.