The United States Equal Employment Opportunity Commission (“EEOC”) has established new procedures for its investigation of EEOC charges. Under the new procedures, a charging party may obtain a respondent’s position statement from the EEOC upon request, and file a response to the position statement within 20 days after receipt. The new procedures apply to position statements requested by the EEOC on or after January 1, 2016. This is an important employment law development. Previously, a charging party was not entitled to obtain a respondent’s position statement until the EEOC closed its investigation, and then, only through a Freedom of Information Act request. There was no opportunity for a charging party to review or respond to a position statement during the investigation. The new procedures significantly improve the EEOC investigative process by facilitating a meaningful exchange of information and allowing investigators to consider responses.
The process initiated by the filing of a charge of discrimination with the EEOC now goes as follows. First, the charge is assigned to the EEOC’s Mediation Unit, which notifies each party of the opportunity to participate in its voluntary mediation program. Mediation is a method of alternative dispute resolution through which a neutral mediator attempts to facilitate a settlement between the parties. If both parties agree to mediation, a mediation is scheduled with an EEOC Mediator. If a party does not agree to mediation (or if the charge is not resolved through mediation), the charge is transferred to the EEOC’s Investigative Unit. At that point the respondent is required to submit a written position statement to the EEOC within 30 days (although extensions of time are common). The position statement is the respondent’s formal response to the charge. After the respondent submits its position statement, the charging party may request the position statement from the EEOC Investigator, who will provide the position statement (and non-confidential attachments) to the charging party. Then the charging party may submit a response to the position statement to the EEOC within 20 days. The charging party is not required to provide his or her response to the respondent; and the respondent may not obtain the charging party’s response from the EEOC.