EEOC to Provide Employer Position Statements to Discrimination Claimants Upon Request
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EEOC to Provide Employer Position Statements to Discrimination Claimants Upon Request

December 2016 - Can the contents of an employer’s position statement be used against that employer in later proceedings? Could the rationale for termination given by an employer in a position statement be utilized to establish pretext in a later lawsuit where the position statement manifests shifting explanations for the termination decision? Although employment lawyers will debate “best practices” for the handling and articulation of termination decisions, the EEOC has now ensured that charging parties will be easily armed with all available resources to challenge that decision.

To that end, as of January 1, 2016, the Equal Employment Opportunity Commission (EEOC) began to provide discrimination claimants with their employers’ position statements upon request during the course of investigating the claimant’s charge of discrimination.  This new policy means that a claimant alleging unlawful discrimination will now be able to review their employer’s position statement, rather than merely receiving a verbal summary from the EEOC.  Previously, a claimant could obtain their employer’s position statement by a Freedom of Information Act request to the EEOC only after filing a civil lawsuit. In essence, the EEOC continues to arm claimants with all available resources to challenge the employer, without providing a commensurate advantage to employers in defending such charges.

The EEOC’s new procedure for disclosing an employer’s position statement to a claimant highlights the importance that the reasons for the claimant’s adverse job action be consistently articulated by the employer, as claimants may argue that inconsistently articulated reasons for an adverse job action evidences that the proffered reasons are merely a pretext designed to mask discrimination.  Accordingly, if the position statement is inconsistent with what the employee was told, what is in the personnel file or exit documents, or evidence from unemployment compensation proceedings, the employer could face a heightened prospect of liability. Although in some states, including Ohio, evidence from unemployment compensation proceedings is not admissible in any other action, other courts have been lenient in admitting such evidence.  If the claimant files a civil lawsuit, the employer should continue to consistently articulate the reasons for the adverse job action, including in pleadings, discovery responses, and depositions.

Employers should also be mindful of their use of confidential or privileged information or documents referenced in or attached as exhibits to their position statements.  While the EEOC will redact confidential information from an employer’s position statement to protect it from disclosure to the claimant, to the extent possible, confidential information should not be included in the position statement itself.  Instead, the position statement should reference separate attachments containing confidential or privileged information or documents, and any such attachments should be clearly labeled “Confidential.”  The EEOC also instructs employers to provide an explanation justifying the confidential or privileged nature of the information.  Confidential or privileged information specifically includes sensitive medical information, Social Security numbers, trade secrets, non-relevant personally identifying information regarding third parties, references to charges of discrimination filed against the employer by other claimants, and confidential commercial or financial information.  Importantly, a claimant’s medical information is not considered confidential information in relation to the EEOC investigation.  Failure to maintain confidentiality could impact an employer beyond the claimant’s EEOC charge if the claimant chooses to move forward with filing a civil lawsuit. The determination of what information and/or evidence should be included in a position statement should be discussed by the employer with experienced counsel.

The EEOC’s new procedure for disclosing employers’ position statements to claimants applies only to position statements requested by the EEOC on or after January 1, 2016.  Despite the fact that claimants can now request their employer’s position statements in the course of an EEOC investigation, the claimant’s response will not be provided to the employer.

In connection with its new procedures regarding position statements, the EEOC has also launched an electronic submission process, thereby eliminating the need for employers to mail or fax their position statements to the agency.

If you have any questions concerning the EEOC’s new position statement procedures or have any question with respect to employment issues, please contact a member of our Employment Practices Liability Practice Group.