Up until recently, the federal Equal Employment Opportunity Commission (“EEOC”) protected from disclosure information collected during the course of an investigation while that investigation was still pending. As of January 1, 2016, that is no longer the case – at least for information submitted by an employer. For all employer position statements submitted to the EEOC on or after that date, the EEOC has implemented new procedures which will provide, upon request, the employer’s position statement to the employee (or former employee) bringing a claim of discrimination. Previously, the position statement was not available to the charging party until after the EEOC’s investigation was completed.
Under the EEOC’s new procedures, the charging party may receive the employer’s position statement and attachments (not including those designated confidential) via e-mail. The charging party then has 20 days to respond to the position statement, but he or she may request an extension. The charging party’s rebuttal may be submitted either in writing, over the telephone, or in a meeting. If the EEOC decides that it requires more information, it will then contact the employer. The EEOC has expressly stated that the charging party’s rebuttal will not be provided to the employer during the investigation. It seems, then, that employers (but not charging parties) have lost a measure of confidentiality protection.
The EEOC states that its staff “may redact confidential information” prior to releasing the statement to a charging party, but employers should proactively take steps to protect sensitive information. As mentioned above, the EEOC’s new Digital Charge System allows the employer to create separate “confidential attachments” in which to put the following information:
- Medical information (except the charging party’s);
- Social Security numbers;
- Confidential commercial or financial information;
- Trade secrets;
- Irrelevant personally identifiable information of witnesses, comparators, or other nonparties; and,
- Any references to charges filed against that employer by other charging parties.
In theory, “confidential attachments” will not be provided to the charging party. However, simply designating the information “confidential” is not enough to protect it from disclosure. The EEOC will review the information designated confidential and make its own determination on whether the employer has provided an adequate justification for confidentiality. It has stated that “blanket or unsupported assertions of confidentiality” will not be accepted. Thus, employers are now essentially held to a “burden of proof” of sorts in asserting that information in their statements should not be disclosed.
With these new rules in place, employers must re-evaluate how they compile information for the EEOC and draft their position statements. Assertions contained in the position statement can now be used against employers at an earlier stage of the proceedings. Moreover, confidentiality issues in the response require more diligence than ever – especially if the response may include commercial information, financial information, or “trade secrets” – with the interpretation and determination of confidentiality now at the whim of the EEOC. Time is still of the essence as these additional considerations must be taken into account during the same 30 day response period. Advance preparation and/or timely advice of competent employment counsel could be valuable; don’t be caught unaware and accidentally release confidential information to an employee (or former employee) in your next position statement.