Employers beware- your confidential statements may be disclosed if you are involved in an unlawful discrimination claim. Effective February 18, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) revised its processes and procedures and will now allow employees bringing unlawful discrimination claims to gain access to the employer’s Position Statement submitted in response to the filing of a Charge of Discrimination. The new rule will also retroactively apply to all  Position Statements made on or after January 1, 2016.

Confidential Information Labeling

If an employer relies on confidential information in its position statement, it should provide such information in a separate attachment to the position statement labeled “Sensitive Medical Information,” “Confidential Commercial Information,” “Confidential Financial Information,” or “Trade Secret Information” to alert the EEOC that the documents should not be provided to the Charging Party. Further the employer should provide an explanation justifying the nature of the information contained in the attachments.

Will Your Documents Remain Confidential?

This revised policy is problematic because it fails to assure employers that documents provided in support of their Position Statement will remain confidential. The EEOC only advises that its “staff may redact confidential information as necessary prior to releasing the information to a Charging Party or her representative.” Thus employers must now carefully review whether or not any confidential proprietary business information is being produced.

Who is at an Advantage?

Previously the EEOC verbally advised the employee of the contents of the employer’s Position Statement.  Now the EEOC will now provide the employer’s Position Statement and non-confidential attachments to the employee upon request. What seems to make this process even more slanted to the employee is that the employee’s response to any employer Position Statement or any rebuttal statements will not be provided to the employer during the pendency of the investigation. The EEOC maintains that the new procedures are meant to unify approaches across all of its offices and will allow it to gain better information to strengthen its investigations, but it appears to put the employee at an advantage.

What Should Employers Do?

If an employer relies on confidential material in its position statement, it should segregate the following information into separate attachments and designate them as follows:

• Sensitive medical information (except for the Charging Party’s medical information).
• Social Security Numbers.
• Confidential commercial or confidential financial information.
• Trade secrets information.
• Non-relevant personally identifiable information of witnesses, comparators or third parties, for example, social security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc.
• Any reference to charges filed against the employer by other charging parties.

The EEOC also warns that it will not accept “blanket or unsupported assertions of confidentiality.”

 Key Takeaways

The EEOC’s new policy fails to assure employers that documents provided in support of their Position Statement will remain confidential.  An employer may not want to disclose confidential information since it can be disclosed.

In addition, this “new” transparency is not reciprocal.  The employer’s responses are disclosed to the employee, but the employee’s responses are not to be shared with employers. The EEOC defends this approach by noting that each side sees the other’s “first formal document”. That position is skewed since the initial complainants’ charges are often non-descript and contain basic or even generic information. Thus, these new rules amounts to free discovery for employees whereby employers have full disclosure obligations.