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In a move that should evoke some concern among companies who file position statements responding to allegations of unlawful conduct from applicants, employees and former employees, effective January 1, 2016, the Equal Employment Opportunity Commission (EEOC) has determined to share position statements with the complaining party.  The anticipated consequence of this policy change will be an increased number of lawsuits where companies have submitted poorly conceived responses without thought for the ensuing legal process that could occur.

If you are not familiar with EEOC position statements, they are required from the government for companies to respond to allegations of unlawful conduct from applicants, employees or former employees.  Examples of allegations include complaints of discrimination, retaliation, and harassment.  Companies are given the opportunity to respond and provide a written statement to the agency which then becomes part of the investigation file.  Previously the EEOC did not share those position statements (some state investigating agencies, however, have when they are investigating claims) with the complaining party.  That has now changed as the EEOC will provide the position statement, redacted with any confidential information, to the complaining party within 20 days of the party’s request.

What does this mean for your business?  First, anticipate that position statements will be requested by attorneys representing the complaining party.  You may not know that legal counsel is representing them at the time you submit the position statement only to find out that they have requested to see your position statement.  If there is something poorly stated, incorrectly stated, a clear admission of unlawful conduct, or anything that paints the company’s defenses to the allegations in a bad way, anticipate a lawsuit.  Plaintiff’s attorneys will now be given a roadmap to wrongful admissions and risk of an unfavorable lawsuit is increased significantly.  Second, the days of companies submitting scratched-out, poorly written and thoughtless position statements should have been done years ago, but many companies try and save money by responding themselves to EEOC complaints.  Companies with internal specialized employment law counsel or that have very experienced HR representatives who understand complex legal arguments and how to defend lawsuits might be okay, but only the largest companies tend to meet these criteria.  For everyone else, outside legal counsel is now more critical than ever when responding to EEOC complaints.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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