Has an employee or applicant ever filed a charge of discrimination against your school district?  As you know, when such a charge is filed, the Texas Workforce Commission (TWC) or the Equal Employment Opportunity Commission (EEOC) will provide the district notice of the charge and ask that the district prepare and submit a position statement responding to the allegations in the charge.  Sometimes the TWC and EEOC will ask very specific questions regarding the allegations and the employee’s work history and require the district to provide the agency with specific documentation to support their position statement.  Typically in the past, the employer’s position statement and documentation were held by the TWC and EEOC and not turned over to the employee, at the agency’s discretion.  However, the EEOC has changed its procedures related to employer position statements and issued new rules allowing the release of the statement and supporting documentation to the employee, at the employee’s request.  Here we will look at the new rules and consider what they mean for your district.

Summary of the New Procedures

First, the new procedures apply to all EEOC requests for position statements made to employers on or after January 1, 2016.  The EEOC advises employers to focus their position statements to address the specific allegations raised in the charge of discrimination.  Generally, the EEOC will give employers 30 days to respond to a charge.

A position statement and supporting documentation can now be submitted electronically through the EEOC’s new Digital Charge System.  The EEOC has issued Phase I of the system and plans to expand it to add a secure portal for individuals who file a charge, and to further enhance communication and document production for both parties.  The EEOC offers a Q&A regarding the system on its website.

The procedures allow a charging party to request a copy of the employer’s position statement and “non-confidential attachments.”  How do we keep attachments “confidential”?  The EEOC procedures state that the EEOC will redact what it deems confidential information before releasing employer documentation to the charging party.  The employee will then have 20 days to respond to the position statement.  To further protect confidential information, employers responding to a charge should provide the confidential information in separate attachments labeled “Confidential,” and provide an explanation justifying the confidential nature of the information.

What Type of Information is “Confidential”?    

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According to the EEOC, the following types of information could be classified as confidential:

  • Sensitive medical information (except for the Charging Party’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 Respondent by other charging parties.

For school districts, we may also include any student information covered by the Family Educational Rights and Privacy Act (FERPA) and any teacher evaluation data (for anyone other than the charging party) under Texas Education Code § 21.355.  It’s unclear whether the EEOC would be willing to also withhold as confidential other types of information protected by the Texas Public Information Act.   In fact, just because something is labeled “confidential” doesn’t necessarily make it so.  According to the EEOC, it will review attachments designated as confidential and consider the justification provided, as the agency will not accept blanket or unsupported assertions of confidentiality.

EEOC Double Standard?

Under the new procedures, while the EEOC will release the employer’s position statement to the employee at their request, the EEOC will not turn over the employee’s response to the position statement.  According to the EEOC, it releases the first formal document received from each party – the charge from the employee and the position statement from the employer.  The EEOC may require the employer to provide additional information to address claims raised in the employee’s response.  It is unclear whether this rebuttal statement or supporting evidence will also be subject to disclosure to the charging party.

What Does This Mean to You?

As you have probably heard a million times, good documentation of performance problems or work rule violations, for example, is key to defending a charge of discrimination.  If good documentation exists to support the employment actions at issue, the district has a better chance at withstanding claims raised in a charge.  Remember also that a charge of discrimination is often the precursor to full-blown litigation on an employment dispute.  The fact that the EEOC is now willing to turn over the employer’s position statement and supporting documentation will provide the charging party an additional advantage.  For one, it allows the charging party to assess the strengths and weaknesses of the employer’s defense.  In addition, having access to the employer’s supporting documentation may allow a charging party to uncover additional causes of action.  Still further, many courts have held that assertions in a position statement that are inconsistent with statements made to the employee at the time of the adverse action, can be used against the employer and help the employee prove their case.  On the other hand, with documentation that clearly establishes the employer’s legitimate reasons for its employment decisions, a charging party may realize they don’t have a legitimate case.  In either scenario, it will be critical for employers to carefully craft their position statements and analyze what documentation should be provided in support, knowing that both may very well end up in the hands of the charging party.   For more on how to craft an effective position statement, see the EEOC’s resource guide or consult your attorney.[/s2If]

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