Employers should take heed of the new Position Statement Procedures adopted by the EEOC, effective January 1, 2016. During an investigation, a Respondent may submit, or may be requested by the investigator to submit, a position statement and documents supporting its position. The EEOC will provide the Respondent’s position statement and non-confidential attachments to Charging Parties upon request and provide them an opportunity to respond within 20 days. But, the Charging Party’s response will not be provided to the Respondent.
What this means, quite obviously, is that employers and their attorneys must be very careful in preparing a position statement, because it will be available to the Charging Party’s attorney in the event a lawsuit is filed. A position statement that is prepared without a full investigation of the facts could result in embarrassment of the employer’s representative in a deposition and possible impeachment material at trial.
In addition, confidential information that is offered in support of the employer’s position, whether it be “sensitive medical information”, “trade secrets information”, privileged attorney-client information, or other information that the employer considers (with justification) to be confidential must be submitted in a separate, properly labeled, attachment. Otherwise, it will be disclosed to the Charging Party along with the position statement.