Its a small thing really, but it can be so helpful. The EEOC has adopted a new national policy that it will allow persons who file an EEOC Charge to obtain a copy of the employer’s explanation. The employer is required by federal statute to provide a response to the employee’s charge of discrimination. The charge itself is just one page. The employer’s response, known as a “Position Statement,” can be quite lengthy with many pages of attachments. For decades, the EEOC has contacted the complainant and reviewed the employer’s response with the complainant. The EEOC would then ask for the employee’s response. Here in San Antonio, the EEOC would summarize the Position Statement in a letter and invite a response from the employee. But, in some regions of the country, the EEOC already provides a copy of the Position Statement itself and then invites the employee’s response. This change in national policy makes the process more uniform.
As I have mentioned before, the EEOC rarely conducts an actual investigation. That is, it does not typically interview possible witnesses or review documents. All it does is compare the employee’s charge to the Position Statement. But, when employers “fudge” the facts a bit, that early statement can include some valuable pieces of evidence. As the employer’s story evolves over time, the Position Statement is the first “cut” at what its story is. if the story changes later, that Position Statement is critical to show that the employer’s story has changed.
So, it is helpful to get a copy of the Position Statement sooner than later. But, in the end, this new policy changes little. The EEOC will still not conduct an actual investigation. So, the outcome of the EEOC investigation will not change. Yet, some defense lawyers see this change as “one-sided” in allowing the employee to see the employer’s story – while supposedly not allowing the employer to see the employee’s story. See Holland and Hart blog post here for example. But, the employer does receive a copy of the charge. The charge is just one page, but it does indeed provide the employee’s story to the employer.
I cannot help but notice Holland and Hart’s advice that if the employer maintains good records and good policies, then this change will not affect them. Sure, but the defense lawyer does not mention that only in rare cases does the EEOC conduct an actual investigation. And, if there is no actual investigation, then there will not be a finding of discrimination. The EEOC does have teeth, but those teeth are so rarely used. But, I suppose if employers did not feel some sense of urgency, then they would not hire those defense lawyers…..