EEOC Position Statement Procedures Released


Allen Smith, J.D. By Allen Smith, J.D. February 22, 2016

A position statement is a chance for employers to make a good first impression with the Equal Employment Opportunity Commission (EEOC) in response to a charge of discrimination. Just don’t overshare in the position statement.

It’s important to label confidential information in separate attachments, the EEOC said Feb. 18 in its procedures for releasing position statements (but not attachments) to charging parties.

While the EEOC said it would release employers’ position statements to charging parties on request, charging parties’ responses will not be provided to employers, the agency noted.

An employer shouldn’t take restraint in its position statement too far. When writing the statement, HR may be tempted to speak in generalities. But according to Stanley Pitts, an attorney with Honigman in Detroit, “Being vague in your position statement will only make the investigator push and prolong her or his investigation.”

Moreover, keep in mind that the EEOC may redact confidential information as necessary prior to releasing the information to a charging party.

Label Separate Attachments

EEOC provides that the position statement should refer to, but not identify, confidential information. The separate attachments should be labeled as such:

  • Sensitive medical information.
  • Confidential commercial information.
  • Confidential financial information.
  • Trade secret information.

The employer should explain the confidential nature of the information in the attachments. Medical information about the charging party will not be deemed confidential or sensitive.

Information that should be put into separate attachments includes:

  • Social Security numbers.
  • Dates of birth in nonage cases.
  • Home addresses, personal phone numbers and personal e-mail addresses.
  • Any reference to charges filed against the respondent by other charging parties.

The EEOC will not accept unsupported assertions of confidentiality.

The commission provided other guidance on position statements as well, noting that employers should respond in 30 days, but may request extensions.

Prior Tips

The EEOC noted in prior tips on position statements that employers should:

  • Address each alleged discriminatory act in the charge and the employer’s position regarding it.
  • Provide copies of documents supporting the employer’s position and/or version of the events.
  • Provide information about any applicable practices, policies or procedures applicable to the allegations in the charge.
  • Identify any individuals other than the charging party who have been similarly affected by these practices.
  • Be specific about dates, actions and locations applicable to the case.
  • Provide internal investigations of the alleged incidents.
  • Inform the EEOC if the matter has been resolved or can be resolved, indicating the employer’s proposal for resolution.

“An effective position statement is clear, concise, complete and responsive,” the EEOC emphasized. “A position statement that simply denies the allegations without providing your position or supporting information is not sufficient.”

Simplify, Streamline

“You always want to be consistent in your responses, both at the EEOC stage and litigation stage,” Pitts said. “Try to establish credibility with the local EEOC office and investigators because they can give you some slack.”

The EEOC is a government agency whose employees are “overworked and underpaid,” said Bernard Tisdale, an attorney with Ogletree Deakins in Charlotte, N.C. So, keep position statements “short, sweet and to-the-point.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.​

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