New EEOC Procedure Suggests Caution In Drafting Position Statements

By Don Benson and Sean Cox
The EEOC implements new nation-wide procedures  providing that all Charging Parties will be provided a copy of the respondent employer’s statement during the course of the investigation, not just after the investigation is completed. This new procedure will apply to all employer Statements of Position [“SOP”] requested after January 1, 2016.

Prior to this new procedure, there was always the risk that a plaintiff’s counsel could obtain a copy of the SOP through a Freedom Of Information Act request after the EEOC investigation was completed or through a written discovery request as part of a subsequent lawsuit.

Now, the Charging Party can obtain a copy of the SOP before the EEOC investigation is completed. This gives the Charging Party an opportunity to rebut any factual claims or defenses during the investigation and may raise special challenges for dealing with a Charging Party who remains an active employee during the EEOC investigation.

Under the new guideline, the Charging Party will simply have to request a copy of the employer’s SOP in order to receive it. Prior to the new policy, EEOC practice on this issue varied by office and even by assigned investigator. We now expect the practice to be uniform throughout the country – Charging Parties will be able to request and receive a copy of the employer’s SOP while the charge remains pending. There is a noted lack of symmetry to the new practice – employers will NOT be permitted to receive a copy of the Charging Party’s supplemental responses during the EEOC’s investigation.

Under this new guideline, the employer must weigh whether to include any potentially confidential information in support of its defense to allegations of different treatment, unequal pay, job criteria, etc. which the Charging Party will not be bound to keep confidential. Often defenses in the SOP include confidential discussions of the prior discipline of comparator employees, other employees’ pay, company business plans supporting reductions in force or promotional opportunities, etc.

The EEOC suggests that the SOP will be redacted of confidential information before it is provided to the Charging Party, but whether such information is actually disclosed will likely depend on the assigned EEOC investigator. This is critical, especially in circumstances when the reason the employee was terminated could create embarrassment or liability to the employer. The charging employee could have been fired for criminal actions, such as bribery or work safety violations, that could subject the employer to liability if those matters became public. Or, the charging employee could also have been terminated for harassing other employees, embezzlement, or other actions that could be embarrassing to the company. Finally, allowing the Charging Party an early insight into the employer’s position gives them a head start in crafting their legal and factual theories, possibly early enough to for the Charging Party to make additional accommodation demands, to complain about other incidents, etc.

There are still very important reasons an employer should strongly consider supplying the EEOC with a strong, comprehensive SOP. First, the SOP provides the employer an opportunity to delineate what the employee’s charge alleges and what it does not. This can be helpful if the case goes into litigation and the employee tries to raise new claims not addressed by the EEOC. Oftentimes, new claims can be dismissed from the litigation as beyond the scope of the charge with the EEOC.

Preparing the SOP will often force the employer to fully enumerate its defenses, particularly the reason for the termination or complained of employment action. This is helpful because it alleviates the risk of failing to identify all relevant reasons for the employment action in the SOP and then later being accused of adding false reasons at a later date as a pretext to hide the original, illegal motive for the decision. A poorly prepared POS can be incomplete and hamstring a later defense by failing to include all relevant reasons. Also, potential plaintiff’s attorneys appraising whether to invest in a case on a contingent fee basis may also be discouraged by complete, well-reasoned SOP along with an EEOC determination favorable to the employer.

The EEOC’s new practice certainly calls for additional consideration as to what information is included in the employer’s responsive position statement. However, it is important to recognize that there also may be ways to leverage the change to the employer’s advantage.