By Jon Hyman
Feb. 23, 2016
Back in the day, if an employee wanted to obtain a copy of an employer’s EEOC position statement, the employee had to go through a process under the federal Freedom of Information Act. For starters, the employee had to wait until after the EEOC issued a right to sue letter, and the EEOC could deny the request for a variety of reasons.
By back in the day … I mean last week. Because, last week, the EEOC implemented a huge policy change, which provides for the release of an employer’s position statements and non-confidential attachments to an employee, upon request, during the investigation of a charge of discrimination. Employees or their representatives must request the document. The agency will not automatically turn it over. But, employees avoid the formality of the FOIA-request process. FOIA, on the other hand, still governs employers’ requests for copies of employees’ submissions (How is that fair?).
Make no mistake, this policy really is huge. Why? Because the EEOC position statement is an employer’s first chance to tell its side of the story, and the semi-automatic provision of these documents to employees and their lawyers places a hyper-premium on accuracy.
One of the ways for an employee to win a discrimination case is to establish pretext — that the employer’s stated reason for the termination or other adverse action was a cover for a discriminatory motive. Among other avenues, an employee can establish pretext by showing shifting rationales. Thus, for example, if a position statement says one thing, and an internal company document says another, you have pretext (or at least enough of a cloud to get the issue to a jury). With the proliferation of communication via email, instant messages, other e-tools, it often doesn’t take much to uncover moving reasons for a decision.
You can assume that, moving forward, employees will request and receive copies of position statements in every case. This policy change is a good reminder for employers to make sure your investigations are thorough and complete before filing an EEOC position statement, and that you are accurate and consistent in your message from termination (or other adverse action) through litigation.
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