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.”
- 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.