Presented by the Employment Law Practice Group

Legal Updates for Employment Law

May 11, 2016

New EEOC Procedures for the Release of Position Statements

By Keri Morris-Johnston

This year, the Equal Employment Opportunity Commission (EEOC) implemented a new procedure allowing the release of an employer's position statement filed in response to a Charge of Discrimination.

Under the new rule, when the EEOC serves an employer with a Charge of Discrimination filed by either an employee, former employee or an applicant for employment, the employer has 30 days to respond to the allegations raised in the charge. In order to defend the charge, employers need to file a position statement and provide specific information that supports its legitimate, non-discriminatory reasons for the actions or inactions taken against the charging party. An effective position statement should detail all relevant information related to the allegations, which may include confidential or proprietary information. Prior to this new rule, an EEOC investigator reviewed the charge and position statement in response and then determined whether additional information was needed to evaluate the claim.

As of January 1, 2016, the EEOC's new procedure requires that the employer's position statement and all non-confidential attachments be released to the charging party, or their representative, upon request. The charging party then has the opportunity to provide the EEOC with a specific, detailed rebuttal to the employer’s position within 20 days. If the charging party provides a rebuttal or additional information to the EEOC, it will not be released to the employer during the investigation. The employer's only opportunity to obtain the information is by requesting a copy of the charge file after the charging party files suit in federal or state court. It is within the investigator's discretion whether that confidential information is then released as a part of the charge file in response to a Freedom of Information Act request.

If an employer provides confidential information to the EEOC in response to the charge, it is strongly suggested that any confidential information be labeled as confidential and separated from the position statement. It is important that employers specifically identify what information is confidential and let the EEOC know that the confidential information should not be released when the position statement is filed.

This new procedure is consistent with the burden shifting that a case will follow if suit is filed once the administrative process of the charge is complete. The charging party will need to establish a prima facie case of employment discrimination. The burden then shifts to the employer to establish a legitimate, non-discriminatory reason for the actions taken against the charging party. The charging party subsequently has the ability to establish that the reasons advanced by the employer are a pretext to mask discrimination.

According to the EEOC’s press release, “[t]he new procedures provide for a consistent approach to be followed in all of EEOC's offices, which enhances service to the public. The procedures will also provide EEOC with better information from the parties to strengthen our investigations.”

If you are served with a Charge of Discrimination, it is important to contact counsel as soon as possible to assist with the filing of the position statement.

EEOC Lawsuits Challenge Sexual Orientation Discrimination as Sex Discrimination

By Keri Morris-Johnston

The U.S. Equal Employment Opportunity Commission (EEOC) has filed two sex discrimination cases based on sexual orientation. The first suit was filed in the U.S. District Court for the Western District of Pennsylvania (3rd Circuit) and the second in the U.S. District Court for the District of Maryland, Baltimore Division (4^th Circuit). Both suits allege discrimination based on sex and retaliation for complaining about the alleged behaviors.

In the first suit, the EEOC alleges that a gay male employee was subject to harassment due to his sexual orientation. The suit contends he complained to his superiors and nothing was done about the alleged harassment. The employee chose to resign rather than continue employment and be subjected to the alleged conduct.

In the second suit, the EEOC alleges that a lesbian employee was harassed due to sexual orientation. She complained about the behavior and was terminated shortly thereafter.

Title VII of the Civil Rights Act of 1964 prohibits discrimination because of sex. The statute does not specifically include sexual orientation as a protected class; however, the EEOC has issued guidance determining that discrimination and harassment based on sexual orientation is prohibited as sex discrimination. While the EEOC's decisions are not binding on the courts, courts often look to the EEOC for direction. Case law surrounding LGBT discrimination is still emerging, and employers should be vigilant to watch for and take preventative measures to provide a non-discriminatory work environment in accordance with the EEOC's guidance.

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