In order to assist employers in drafting EEOC position statements, we recently released a video on our YouTube page outlining tips for crafting EEOC position statements. As a follow up to that video, we want to highlight the EEOC’s recent updated information and guidance regarding employer position statements. A position statement is the employer’s response to an employee’s or ex-employee’s Charge of Discrimination. In most instances, after an employee or ex-employee files a Charge of Discrimination with the EEOC, the EEOC contacts the employer to request a position statement. While many employers will utilize the services of a lawyer to draft the position statement, it certainly is something that the employer itself can create. The EEOC’s updated guidance can assist.
The EEOC provides that employer position statements should refer to, but not identify, confidential information. That confidential information should be provided in separate attachments and labeled as appropriate for (1) sensitive medical information, (2) confidential commercial information, (3) confidential financial information and (4) trade secret information. The employer should fully explain the confidential nature of the information in the attachments but keep in mind that medical information about the charging party will not be considered confidential or sensitive by the EEOC. Information that the EEOC considers confidential and that should be included in the separate attachments includes, but is not limited to (1) Social Security numbers, (2) dates of birth in non-age discrimination cases, (3) home addresses, personal phone numbers and personal e-mail addresses and (4) any reference to charges filed against the employer by other parties.
In addition to the update on confidentiality, the EEOC also outlined that employers should provide position statements within 30 days of the request but may request extensions of that time. This updated guidance supplements previous EEOC guidance on position statements, including:
- Employers should address each alleged discriminatory act in the Charge of Discrimination and the employer’s position in response
- Employers should provide copies of any documents supporting their positions
- Employers should provide information about any applicable practices, policies or procedures applicable to the allegations in the Charge of Discrimination
- Employers should identify any individuals other than the charging party who have been similarly affected by the employer practices at issue
- Employers should be specific about dates, actions and locations
- Employers should provide information regarding any internal investigations of the alleged incidents
- Employers should inform the EEOC if the matters has been resolved or can be resolved, including a proposal for resolution (if applicable)
The EEOC essentially provides that position statements should be “clear, concise, complete and responsive.”
Keep in mind that the position statement is not a time to “throw in the kitchen sink” regarding the employee or ex-employee at issue. Be brief but thorough and specific in your position statement and only address the relevant issues surrounding the employee’s or ex-employee’s allegations. Keep in mind that the employee can receive a copy of the position statement so be mindful of your tone, language and confidential information. Also, if you conducted an internal investigation with the assistance of counsel, keep in mind that some of that may be privileged under the attorney-client or work product privileges and, thus, that information should not be provided to the EEOC. Finally, keep in mind that anything you say in the position statement should coincide with what you will allege in any potential subsequent litigation. As such, be consistent and credible. With these tips in mind, you should be able to craft an effective employer position statement. If you are ever concerned about potential litigation or feel uncomfortable drafting the position statement, you should contact your employment attorney for assistance.
