The Equal Employment Opportunity Commission (“EEOC”) recently implemented nationwide procedures for the release of employer position statements to Charging Parties upon request. The new procedures raise concerns about disclosure by the EEOC of non-public personnel and commercial or financial information the employer may disclose to support its position with regard to the Charge.
Before releasing the supporting documents to the Charging Party, the EEOC will review the employer’s submissions and withhold only information the Commission decides should be considered confidential. The type of information considered confidential by the EEOC includes:
- Sensitive medical information (except for the Charging Party’s medical information)
- Social Security Numbers
- Confidential commercial or confidential financial information
- Trade secrets
- Non-relevant personally identifiable information of witnesses, comparators or third parties, e.g., dates of birth in non-age cases, residential addresses, personal telephone numbers, personal email addresses, etc.
- References to Charges filed with the EEOC by other Charging Parties
The EEOC has stated that it will not accept an employer’s blanket or unsupported assertions of confidentiality. If employers present confidential information with their position statements, the EEOC instructs that the information should be segregated from the position statement in separate attachments and bear one of the following designations to signify that the attachment contains information believed to be confidential and subject to protection from disclosure:
- Sensitive Medical Information
- Confidential Commercial Information
- Confidential Financial Information
- Trade Secret Information
The labels are intended to expedite the EEOC’s review of confidential information and consideration of the justification proffered to maintain confidentiality. After its review, the EEOC has discretion to redact the information designated by the employer as confidential before releasing the position statement to the Charging Party.
Given the short amount of time often provided to respond to a Charge, and the type of information generally presented to support the position statement—e.g., employment information of non-parties and proprietary, competitive corporate information—employers should familiarize themselves with the EEOC’s new procedures for releasing employer position statements so that they are prepared to properly present and protect confidential information.