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EEOC now revealing employers’ information to charging parties

published in McAfee & Taft EmployerLINC | February 24, 2016

By Charlie Plumb

The Equal Employment Opportunity Commission (EEOC) has forwarded to you a charge of discrimination filed by a former employee complaining they were fired by your company based on their race. In addition to the charge of discrimination, the EEOC has issued a request for information (RFI) to you. The RFI gives you 30 days to submit a statement of position and provide documents responding to the former employee’s accusations of race discrimination. How are an employer’s statement of position and accompanying documents used?

The EEOC has always used the information provided by an employer to conduct its investigation and to assist with eventually making a determination. An employer’s position statement and related documents may also trigger requests by the EEOC for additional information during its investigation of a discrimination charge. For the most part, a charging party previously did not receive copies of what the employer provided to the EEOC during the course of an investigation. That situation changed on January 1, 2016, when the EEOC issued a new nationwide procedure regarding an employer’s response to a charge.

Employers’ info now provided to a charging party

Beginning January 1, 2016, a charging party or their representative may request that the EEOC forward an employer’s statement of position and any supportive documents provided by the company. If it has submitted confidential information to the EEOC — such as medical, commercial, financial or trade secrets information — the employer should designate and separately produce such material. According to the EEOC, it will not provide that sort of information to a charging party.

Once they receive the requested material, the charging party will have 20 days to contest the employer’s explanation and defense. Guess what? The charging party’s reply is not provided to the employer.

Responding to discrimination charges going forward

Doing a good job responding to EEOC charges of discrimination has always been important. It can be the first and sometimes the best opportunity for an employer to demonstrate an employment decision was not discriminatory. Now, a charging party’s right to obtain the company’s statement of position and prepare a reply places a premium on the employer preparing a thorough and persuasive explanation and identifying what, if any, information is confidential.