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New EEOC Nationwide Procedures Threaten the Confidentiality of Position Statements

by: Carolyn Witherspoon   New EEOC Nationwide Procedures Threaten the Confidentiality of Position Statements Employers be warned--the Equal Employment Opportunity Commission (“EEOC”) just announced new procedures that could allow potentially disgruntled charging parties to get their hands on information that you intended to keep confidential. According to an announcement made by the EEOC on February 18, 2016, a charging party, upon request, will be provided with a copy of the respondent’s position statement and non-confidential attachments. A few important things to consider…
  • The Nationwide Procedures retroactively apply to all EEOC requests for position statements made on or after January 1, 2016, so these requests apply to statements you currently may be drafting or have recently submitted.
  • If a charging party requests a copy of the employer’s position statement, it will be provided to the charging party who will then have twenty days to respond. However, turnabout is not fair play; the EEOC will not afford employers the right to receive a copy of the charging party’s response in return.
  • After the EEOC reviews the position statement and attachments, EEOC may redact confidential information as necessary before releasing the information to the charging party. Notice the permissive nature of this, however. There is no guarantee that the EEOC will ensure that the protections of confidentiality remain intact before turning over a position statement unless such information is clearly segregated and labeled as “Confidential.”
What type of information is “Confidential”? The EEOC provides the following list of information it considers confidential, and thus, should be separately and clearly labeled as such:
  • Sensitive medical information (except for the charging party’s medical information).
  • Social Security Numbers.
  • Confidential commercial or confidential financial information.
  • Trade secrets information.
  • Non-relevant personally identifiable information of witnesses, comparators or third parties; for example, SSNs, dates of birth in non-age cases, home addresses, personal phone numbers, personal e-mail addresses, etc.
  • Any reference to charges filed against the respondent by other charging parties.
Importantly, the EEOC will review the attachments marked as confidential and consider the justification provided by the respondent, but it will not accept blanket or unsupported assertions of confidentiality. Exercise care with confidential information. Respondents who rely on confidential information in their position statements should use care in isolating that information in separate attachments that are clearly labeled to show confidentiality. The EEOC provides that such information should be labeled “Sensitive Medical Information,” “Confidential Commercial Information,” “Confidential Financial Information,” or “Trade Secret Information” or other designation as applicable. Based on the Nationwide Procedures, employers should remain conscious of the likelihood that what is contained in or attached to position statements will end up in a former employee’s hands. However, an employer should also realize that a vague position statement could prolong the investigation and should refrain from taking restraint in a position statement to the level of unsupported generalities. To stay on the safe side, be certain to separate confidential information as attachments and do not include this confidential information in the body of the position statement. Clearly label any sensitive information as “Confidential,” and provide justification for doing so. Exercising this caution will protect such information from ending up in the hands of a charging party.