Client Alerts / 03.09.2016

New EEOC Policy May Make Confidential Information Available to Employees

Authored by: Robert Bowes with Alex Jones

When a current or former employee files a charge with the Equal Employment Opportunity Commission (“EEOC”), the employer is tasked with putting together a position statement, which details the employer’s position and attempts to refute the employee’s allegations. Position statements typically contain confidential and sensitive information regarding the employer’s business, and as a result, these statements were not typically disclosed to the complainant. The EEOC recently announced new nationwide procedures that authorize the EEOC to provide the complainant with the employer’s position statement in its entirety.

The EEOC’s new procedures require employers that rely on confidential information in their position statements to submit confidential information to the EEOC in separately labeled attachments. The attachments are to be separated and designated into one of the following categories:

  • Sensitive medical information (except for complainant’s medical information)
  • Social Security Numbers
  • Confidential commercial information
  • Confidential financial information
  • Trade secrets information
  • Non-relevant personally identifiable information of witnesses, comparators or third-parties (g., social security numbers, dates of birth in non-age discrimination cases, home addresses, personal phone numbers, personal email addresses, etc.)
  • Any reference to charges filed against the employer by other complainants.

Employers are further required to give explanations as to why the information is confidential and should not be made available to the complainant. The EEOC has made clear that simply labeling documents as confidential will not automatically keep them confidential. The EEOC will review the attachments and, at its discretion, redact information it deems to be truly confidential while providing the remaining information to the complainant.

There is no reciprocal provision allowing employers to obtain any additional responsive information which is provided to the EEOC by the complainant.

The EEOC’s new procedures effectively provide complainants with early, free discovery, which could potentially have both negative and positive consequences for employers. Early discovery may demonstrate the weaknesses of an employee’s claim, leading to an efficient resolution, or it may point the complainant/opposing counsel to different theories of liability or additional plaintiffs. Nevertheless, employers must now be even more vigilant when crafting their position statements, as there is no guarantee that their sensitive business information will remain confidential.