EEOC’s directive makes position statements on discrimination claims available to employees

When a claim is filed with the Equal Employment Opportunity Commission, it has the authority to investigate the claim and determine if there is reasonable cause to believe discrimination has occurred. In order to do so, each party -- the employer and the employee -- is requested to submit information to help the EEOC investigate the claim. In my April 21 blog, I discussed retaliation by employers in the workplace and the EEOC's guidance if you, as an employee, believe you have been retaliated against in some way. Whatever the charge under Title VII, including retaliation, an employer's position statement, with supporting documents, is an essential aspect of its investigation. The EEOC has issued a guidance document governing the position statement that an employer submits in response to a charge of unlawful discrimination. In its directive, effective Jan. 1, 2016, the EEOC now requires all field offices to release to a charging party (an employee) or his or her attorney the employer position statement. Required information in the statement should include specific, factual responses to every allegation by the employee, in addition to other facts deemed essential by the employer to the claim. Any witnesses and identified documents also should be included in the statement. In short, the position statement should be clear, concise, complete and responsive. A simple denial of the claim by an employer is not acceptable, according to the EEOC's "Effective Position Statements." The EEOC's directive is extremely helpful to you and your legal counsel when a claim is filed. Although in past years some field offices did release the employer's response to a claim, it is now a requirement that can help you or your attorney prepare your case with more certainty. Based on the employer's response, an evaluation of the statement and any documents can occur. What you or your attorney would want to evaluate would include: 1. The number of witnesses, if any 2. The identity of those who made decisions or took action in response to your allegations 3. Other employees, if any, who were treated differently than you were (e.g., not fired, given a promotion), and if other employees who were in a similar situation were treated the same as you were (e.g., fired, not given a promotion) 4. Reports of any internal investigations There are additional protections for you, as well. Specific instructions in the EEOC directive dictate how the employer must protect your "sensitive" information, such as your social security number. Such information is submitted in separate files when the employer files its position statement through the EEOC's "respondents portal." And if you file a response to the employer's position statement, it is not released to the employer. These changes to the investigative EEOC process are a welcome addition. They should eliminate many of the challenges that might exist to a fair and timely process in resolving discrimination charges. Review the entire "Effective Position Statements" directive for more information. NOTE: Nancy Brent's posts are designed for educational purposes and are not to be taken as specific legal or other advice.