Under new procedures effective January 1, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) is mandating unprecedented transparency by requiring the employer’s position statement and supporting documentation to be shared with the charging party during the investigation.  The EEOC’s new procedures can be found here.  While presented by the EEOC as a procedural change, it is likely to have substantive consequences for many employers.

It seems EEOC charges are almost commonplace, these days.  They are easy to file, usually done without an attorney, and there is no cost to the charging party.  The individual does not even have to file in person; a charge can be sent in by mail.  Any job applicant or current or former employee who feels discriminated against can provide a statement to an intake officer, who, if certain easy-to-show threshold factors are met, will facilitate the filing.  Most mid-sized and large companies in business for a long time have responded to numerous EEOC charges, with some companies routinely defending multiple charges each year.  Even small employers with as little as 15 employees can be named in a charge.

On the upside, if an employer is able to put together a convincing and well-supported position statement in response to the charge, that often is enough to secure a dismissal at the EEOC level.  Sometimes, after the position statement is submitted, the employer may be asked to provide follow-up information or documents.  For the most part, employers have enjoyed a fair level of confidence that, if they are able to credibly articulate in the position statement the legitimate, non-discriminatory reasons for the challenged actions, the EEOC process will predictably conclude with a dismissal and right to sue notice to the charging party.

Unprecedented Transparency, Unsettling Concerns

In the past, EEOC investigators did not share the employer’s position statement with the charging party as a matter of course, and there certainly was no agency requirement that they do so.  Indeed, absent later court litigation or Freedom of Information Act (FOIA) request, the position statement generally never made it into the hands of the charging party.  Although the EEOC’s file is accessible to the public through a FOIA request, obtaining the file through a FOIA request can take some time, and the file is not subject to disclosure until after the EEOC investigation concludes.

Now, under its new procedures, the EEOC will send the employer’s position statement and supporting documentation to the charging party during its investigation, and allow the charging party an opportunity to respond.  Employers should consider some of these potential ramifications.

• At a minimum, employers can anticipate an increase in follow-up investigation activity by the EEOC.  Perhaps gone are the days when the only communication an employer generally received from the EEOC following submission of the position statement was the notice of dismissal and right to sue.  Expect more document requests, information requests, requests for employee interviews, and on-site inspections as the EEOC looks into questions raised by the charging party, who has gone through the employer’s position statement with a fine-tooth comb trying to poke holes in the employer’s explanations.  This should cause companies to think carefully, not only about what documents to submit to the EEOC, but what arguments to make at all.  Anything but the most bullet-proof arguments may only invite case-weakening ammunition from the employee.

• Employers also might find it disconcerting that its personnel and company information is shared as a matter of course with the charging party.  The EEOC has outlined certain types of information that the employer should submit separately so as not to be provided to the charging party (for example, trade secrets, social security numbers, other employees’ private information).  But that leaves plenty of other information that most employers would be reluctant to share relating to inner workings of management decisions or other managerial-level information.

• From the practitioner’s standpoint, employees will have an early sneak-peek, a road map, to the company’s defenses and what its arguments would be in litigation.  This might work in the employer’s favor: a charging party could be dissuaded from filing a lawsuit after seeing the soundness of the company’s position up front.  On the flipside, though, we may start to see more and more complaints filed in court that subsume the employer’s arguments and draft their way around motions to dismiss or summary judgment, by plaintiffs who know in advance what the employer would claim in such motions.  The concern for employers is that the process removes the employer’s ability to control strategy: when, if, and how much information to share, and for what reasons.

Now more than ever, EEOC responses need to be thought through carefully and with purpose, applying a cost/benefit analysis when deciding what information to provide to the EEOC.  Going forward, an EEOC investigation might start to look more like briefing a summary judgment motion in court, only without court protections such as requiring sworn testimony and admissibility of evidence.  Employers may be best served by focusing on preventive steps like training and best practices to avert an EEOC charge before it is filed.