By now, most employers are aware of the fact that the EEOC has announced changes related to the way that an employer’s position statement – the initial document filed by a company, outlining its defenses to a Charge of Discrimination – are being handled, and that those changes became effective on a nationwide basis on January 1, 2016. The changes can be summarized in these four points:
- An employee now can ask, while his or her EEOC charge is pending, for the employer’s position statement and any non-confidential attachments. Prior to this recent revision, employees could not obtain that information until after filing a lawsuit in federal court.
- The EEOC has listed less than 10 categories of information designated as “confidential” and that will be redacted prior to providing an employer’s position statement to the complainant. That means that employers no longer can assume that every document or fact considered by the company to be confidential will be viewed by the EEOC as such. (. . . [T]he agency will not condone blanket or unsupported assertions of confidentiality.”)
- Complainants will be allowed 20 days within which to submit, to the EEOC, a written response to an employer’s position statement, to refute factual assertions made by the employer. However, the charging party’s response will not be provided to the employer during the investigation.
- A new “Digital Charge System” allows employers to transmit and receive notices and documents through a secure online portal after a written Charge of Discrimination has been filed. (An upcoming phase will allow individuals to file a charge online, but that has not yet been implemented.)
The EEOC has posted separate Q&A pages for charging parties/complainants and employer/respondents, addressing issues of importance to each side, and outlining the Commission’s preferred methods for the submission of a position statement and any response to the same.
These four points raise the stakes for employers in several ways, including that a complainant now will be provided with more information and documentation in the early stages of the process. That means that employers must increase the level of care taken in writing clear, concise, and complete position statements that accurately and fully reflect the reasons on which the company’s disputed decision was made, to avoid confusing or incomplete submissions. Further, the position statement must be signed by an “officer, agent, or representative of [the company] authorized to speak officially on its behalf.”
The EEOC has provided a detailed road map of its expectations for position statements in a website posting concisely titled “Effective Positions Statements.” The posting outlines the information that the EEOC expects to see in a position statement, specifically including the types of documentary evidence that can support a defense (statements or affidavits from witnesses with direct knowledge of the alleged events, payroll records, personnel records, and documentation outlining the reasons for termination decisions).
It also sets forth the circumstances under which it will allow an extension of the original 30 day limitation for submission of a position statement (requiring some indication of due diligence, including “partial submission of information related to the allegations in the charge”).
In essence, this procedure includes and/or constitutes an anticipatory document production prior to filing a discrimination lawsuit. In some cases, that may provide a more complete understanding of the complaints and defenses and could lead to early resolution, but in others, it may create an adversarial situation earlier than normally occurs. Whether the new position statement procedures will result in more litigation or less litigation remains to be seen.