Employers should be specific in position statements they submit to the EEOC, and must recognize that those position statements and supporting documents will now routinely be sent to the charging party for further response, under new guidelines and procedures issued recently by the EEOC.
The new EEOC Resource Guide on Effective Position Statements states that employers should “include specific, factual responses to every allegation of the charge, as well as any other facts which [are] relevant for [the] EEOC’s consideration.” According to the Guide, “[a]n effective position statement is clear, concise, complete and responsive” and “should clearly explain the [employer’s] version of the facts and identify the specific documents and witnesses supporting its position.”
The Guide suggests that employers may want to include substantial details, such as: employer’s position with respect to each alleged discriminatory act; any practices, policies or procedures applicable to the allegations in the charge; the names of individuals other than the charging party who have been similarly affected by the employer’s practices, policies or procedures and a description of the circumstances in which the practices, policies, or procedures were applied or an explanation of why individuals who were in a similar situation to the charging party were not similarly affected; the names of the official(s) who made decisions or took action relating to the matter(s) raised in the charge; specific date(s), action(s) and location(s) applicable to the charge; and, a statement concerning whether the matter has been resolved or can be resolved and, to the extent it can be resolved, a proposal for resolution.
The Guide also suggests employers support their position statements with documentary evidence, including: documents supporting the employer’s position and/or version of events, including such as witness statements , payroll records, disciplinary and termination records; a staffing or organizational chart; copies of any policies or procedures applicable to the allegations in the charge; and, the reports of any internal investigations relating to the allegations raised.
Employers should refer to, but not identify, information that the employer asserts is either sensitive medical information or confidential commercial or financial information. If such information must be used or produced, employers should segregate it in separately designated attachments.
An employer’s confidentiality designations and the preservation of privileges are extremely important in light of the new Nationwide Procedures for Releasing Respondent Position Statements and Obtaining Responses from Charging Parties. Those Procedures provide that the EEOC will provide the Respondent’s position statement and non-confidential attachments to Charging Parties upon request and provide them an opportunity to respond within 20 days. However, turnabout is not fair play – the Charging Party’s response will not be provided to the Respondent during the EEOC investigation.
The Procedures apply to all requests made to the EEOC on or after January 1, 2016. As a result, employers must be very cautious about what they include in their position statements as the position statement and all non-confidential attachments will be produced upon request to a potentially disgruntled employee or former employee. The EEOC has given clear direction on what should be in position statements and will make position statements readily available. Accordingly, employers should carefully consider whether to include outside counsel in the position statement process.