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Jul 12, 2016

Employer responses to EEOC and non-confidential attachments may be shared

Privacy & Confidentiality 

Beginning on January 1, 2016, any employer response to a claim filed with the Equal Employment Opportunity Commission (EEOC) and any non-confidential attachments will be given upon request to the individual who brought the claim to the EEOC. This change is designed to “strengthen” the EEOC’s investigation and ensure consistency between all EEOC offices, and comes on the heels of the EEOC rolling out a new Digital Charge System, which allows employers to submit information electronically. The EEOC announced the new policy in a press release on February 18, 2016.

Reporting Workplace Harassment or Discrimination: The Process

What happens when a worker contacts the EEOC saying that an employer has violated the law through illegal discrimination or harassment?

1. The EEOC collects information from that individual, notifies the employer, and asks for a response from the employer.

2. This response will often include attachments that help refute the worker’s allegations.

What attachments are included in the response to the EEOC?

These attachments could be documents such as:

· company policies;

· investigation notes;

· disciplinary records, etc.

For attachments that contain confidential information, employers must specifically label them as confidential in order to have any chance of preventing them from being revealed to the disgruntled worker. Unfortunately, that doesn’t necessarily guarantee confidentiality; the EEOC has stated that it will “review attachments designated as confidential and consider the justification provided, as the agency will not accept blank or unsupported assertions of confidentiality.” This also means that if the worker is represented by an attorney, the attorney will see the employer’s response and non-confidential attachments.

Tips: This change in procedure is a great reminder to make sure your Vigilant employment attorney responds to any EEOC charge on your behalf, or at least reviews your response. It will also be very important to review everything given to the EEOC to ensure that nothing confidential is inadvertently shared with the worker and their attorney. Contact your Vigilant employment attorney immediately if you receive an EEOC charge.
 

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