As of January 1, the Equal Employment Opportunity Commission (EEOC)’s new nationwide policy is to release the Employer’s Position Statement to the charging party during the course of each investigation. Unfortunately for employers, any written rebuttal submitted on the charging party’s behalf will not be shared with the employer.

Additionally, although the EEOC instructs employers to mark confidential information for potential redacting, there is no guarantee by the EEOC that its investigators will share an organization’s view of what is confidential. Even if confidential information is redacted while the charge is pending, the Freedom of Information Act (FOIA) will allow the charging party to obtain a copy of the file once the EEOC closes its investigation.

Barada recommends all employers work with experienced employment counsel on position statements before submitting them to the EEOC. The new policy will increase the complexity of submitting these statements, making careful handling of the EEOC’s new Digital Charge System even more important.