The United States Equal Employment Opportunity Commission (“EEOC”) has implemented a new policy that will give pause to employers defending discrimination claims in the agency’s forum.
• The procedure requires the release of employer position statements, including all non-confidential documents and exhibits, to the charging employee.• Employers are also required to share positions statements with claimant employees’ attorney representatives.
Proving illegal pretext
Employers beware: if a position statement says one thing and an internal company document says another, this constitutes an illegal pretext (or at least enough of an issue of fact to get to a jury trial). With the explosion of communication via email, instant messages and even social media, uncovering various reasons for a decision becomes easier.
Previously, the disclosure of employer position statements was made at the discretion of the particular EEOC field offices’ directors or investigators, and practices were inconsistent nationwide. Before the change, EEOC investigators might summarize an employer’s evidence and arguments for an employee to solicit the latter’s response. Now, the employee will be able to view firsthand all of the employer’s “cards on the table,” and read the defending employer’s argument for him/herself.
The Administrative Process
Submitting employer position statements to the EEOC is part of the standard agency process:
• Employees utilize this federal agency to file claims, or “charges,” of discrimination.
• Employers submit responses in the form of position statements that lay out all relevant arguments and defenses.
• The EEOC makes a determination based on both sides of the story.
• After utilizing the EEOC agency process, employees can file law suits against employers within a certain statutory number of days.
This new process essentially creates discovery for the employee without jumping through the original hoop of requesting a copy of the position statement through FOIA (the Freedom of Information Act).
The release of position statement copies, together with all non-confidential documents submitted in support of the position statement, is effective January 1, 2016. The EEOC states these new procedures are intended to “create uniformity and greater transparency in the handling of discrimination charges throughout the country.” However, employers will not benefit equally from a fuller exchange of information because the EEOC does not intend to furnish employers with the employees’ responses to the position statement.
Employers now must separate and appropriately label confidential information that is submitted in support of position statements (for example, in a separate attachment labeled “Confidential”). The scary part for employers? Whether the EEOC will, in every instance, accept the Employer’s characterization of material as confidential remains entirely unknown.
The EEOC does promise that the following sensitive material will not be turned over to claimant employees:
• Sensitive medical information.
* Confidential commercial or financial information.
• Trade secrets.
• Non-relevant personally identifiable information of witnesses, comparators or third parties (such as social security numbers, addresses, phone numbers).
• References to charges filed against employers by other charging parties.
The New Policy’s Implications
As Workforce.com points out, make no mistake: this policy is really huge “because the EEOC position statement is an employer’s first chance to tell its side of the story, and the semi-automatic provision of these documents to employees and their lawyers places a hyper-premium on accuracy.”
An effective way for an employee to win a discrimination case is by establishing pretext, which means proving the employer’s stated reason for the termination (or other adverse employment action) was a “cover-up” for discrimination. While there are several ways to prove pretext, an employee can establish pretext by demonstrating the employer’s shifting rationales.
Corporate attorneys and employers should consider the implications of this new policy going forward, particularly because plaintiffs’ attorneys now may have access to what is, in essence, early discovery. This is a benefit for plaintiffs’ counsel that may encourage settlement because both parties can recognize weaker claims earlier on in the administrative process.
Employers should also keep in mind that information produced in a position statement may alert opposing counsel to new legal theories, additional damages, and potential new plaintiffs. Thorough, consistent, and accurate investigations will continue to be important avenues of preparing employer position statements.