EEOC Releasing Position Statements
Contact Clara (C.B.) Burns, Charles C. High, Jr., Michael D. McQueen and Gilbert L. Sanchez -
March 2, 2016
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Respondent’s Beware: EEOC Will Release Your Position Statement to the Charging Party
On February 18, 2016, the EEOC announced that it will now make a Respondent’s position statement on a charge of discrimination available to a Charging Party before the investigation is complete, and allow the Charging Party to respond to the statement as part of the investigation. This procedural change is retroactive to position statements submitted on or after January 1, 2016. The EEOC promises to redact any confidential information before disclosing the statement.
Sound like a better, more open means of investigation?
Not so fast……
A Respondent does not get the same treatment. The Charging Party’s response to the position statement will not be shared with the Respondent during the investigation, nor will any other records of the investigation. Respondents are still prohibited from seeing anything in the investigation file without first submitting a FOIA request after the investigation is complete and (currently) not unless a lawsuit has been filed in court.
The lesson for employers is that you must still respond truthfully and with enough information for the EEOC to make a determination, but be extremely cautious with what you include in your position statement. Anything you consider to be confidential should be marked as such, and you should keep your fingers crossed that the EEOC agrees it is confidential and redacts it before handing it over to the Charging Party. The best practice is not to include anything that you consider to be confidential unless you have no other way to demonstrate that discrimination/retaliation were not reasons for the adverse employment action. If there is any doubt, or you are concerned about the content of your position statement, contact us for guidance and assistance.
A copy of the EEOC’s announcement is attached, and you can get further information on the EEOC website at:
http://www.eeoc.gov/eeoc/newsroom/release/position_statement_procedures.cfm
About Kemp Smith
For 150 years, Kemp Smith has provided high quality legal services throughout the Southwest, with offices in El Paso, Austin and Las Cruces. The firm prides itself on the expertise of its attorneys in numerous specialty areas, including trial and appellate litigation; insurance defense; medical malpractice; bankruptcy; labor and employment; tax; corporate and business transactions; environmental, public and administrative law; healthcare administration; trusts and estates; governmental affairs; real estate; and intellectual property. Please visit www.kempsmith.com or call 915.533-4424 for more information.
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On February 18, 2016, the EEOC announced that it will now make a Respondent’s position statement on a charge of discrimination available to a Charging Party before the investigation is complete, and allow the Charging Party to respond to the statement as part of the investigation. This procedural change is retroactive to position statements submitted on or after January 1, 2016. The EEOC promises to redact any confidential information before disclosing the statement.
Sound like a better, more open means of investigation?
Not so fast……
A Respondent does not get the same treatment. The Charging Party’s response to the position statement will not be shared with the Respondent during the investigation, nor will any other records of the investigation. Respondents are still prohibited from seeing anything in the investigation file without first submitting a FOIA request after the investigation is complete and (currently) not unless a lawsuit has been filed in court.
The lesson for employers is that you must still respond truthfully and with enough information for the EEOC to make a determination, but be extremely cautious with what you include in your position statement. Anything you consider to be confidential should be marked as such, and you should keep your fingers crossed that the EEOC agrees it is confidential and redacts it before handing it over to the Charging Party. The best practice is not to include anything that you consider to be confidential unless you have no other way to demonstrate that discrimination/retaliation were not reasons for the adverse employment action. If there is any doubt, or you are concerned about the content of your position statement, contact us for guidance and assistance.
A copy of the EEOC’s announcement is attached, and you can get further information on the EEOC website at:
http://www.eeoc.gov/eeoc/newsroom/release/position_statement_procedures.cfm
About Kemp Smith
For 150 years, Kemp Smith has provided high quality legal services throughout the Southwest, with offices in El Paso, Austin and Las Cruces. The firm prides itself on the expertise of its attorneys in numerous specialty areas, including trial and appellate litigation; insurance defense; medical malpractice; bankruptcy; labor and employment; tax; corporate and business transactions; environmental, public and administrative law; healthcare administration; trusts and estates; governmental affairs; real estate; and intellectual property. Please visit www.kempsmith.com or call 915.533-4424 for more information.
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