When responding to an EEOC charge of discrimination, employers should always separate and clearly mark any trade secrets or confidential information included in the position statement to the EEOC. This is especially important in light of the EEOC’s new procedures that provide for the release of employers’ position statements and non-confidential attachments to employees who filed charges or their representatives upon request during the EEOC investigation.
The new procedures apply to all EEOC requests for position statements made to employers on or after January 1, 2016.
During the investigation of a charge, the EEOC may request that the employer submit a position statement and documents supporting its position. The statements should discuss the facts relevant to the charge of discrimination and identify the specific documents and evidence supporting the position. See my previous posts on how to draft a position statement here, here, and here.
If an employer relies on confidential information in its position statement, it should provide such information in separately labeled attachments. After the EEOC reviews the employer’s position statement and attachments on a specific charge, the EEOC staff may redact confidential information as necessary prior to releasing the information to a charging employee or his or her representative.
According to the EEOC:
The position statement should refer to, but not identify, information the [employer] asserts is sensitive medical information, confidential commercial or confidential financial information. If the [employer] relies on confidential information in its position statement, it should provide such information in separate attachments to the position statement labeled “Sensitive Medical Information,” “Confidential Commercial Information” or “Confidential Financial Information,” or “Trade Secret Information” as applicable. The [employer] should provide an explanation justifying the confidential nature of the information contained in the attachments.
What type of information is “confidential” that should be put into separately labeled attachments? According to the EEOC, the employer should segregate the following information into separate attachments and designate them as follows:
- Sensitive medical information (except for the charging employee’s medical information).
- Social Security Numbers.
- Confidential commercial or confidential financial information.
- Trade secrets information.
- Non-relevant personally identifiable information of witnesses, comparators or third parties, for example, social security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc.
- Any reference to charges filed against the employer by other charging parties.
The EEOC will review attachments designated as confidential and consider the justification provided. Thus, employers should be judicious in what information they mark as “confidential” or “trade secrets information” and be able to explain why that information is designated that way. Disclosing such information to the EEOC without confidentiality or trade secret designation may later result in the company not being able to claim such information as “trade secret” under the Texas Uniform Trade Secrets Act.
Leiza Dolghih frequently advises employers on how to handle troublesome employees, assists with responding to EEOC charges and investigations, and litigates employment disputes. For additional information, contact Leiza at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108.