Recent Changes to EEOC Investigation Procedures

Mar 30, 2016

As of January 1, 2016, the EEOC made substantial changes to its charge investigation process. The EEOC implemented a digital charge system, completely modifying how the EEOC communicates with employers. The EEOC also revised its investigation procedure, now allowing charging parties to view and respond to employer position statements.

Digital Charge System

A. Notifications

If the EEOC has an e-mail address on record for an organization, the EEOC will send the charge notification through e-mail. The e-mail notification will include the Respondent Portal log-in information for that particular charge. The Portal provides access to all information related to the charge. It also serves as the communication interface for all submissions relating to the charge, including position statements. Because the EEOC acquires e-mail addresses through past communications with an employer, it may have an outdated or improper e-mail address on record for an organization. Therefore, we highly suggest that you contact the EEOC at 1-800-669-4000 to provide the proper contact information for your organization.

B. Legal Representation

An organization may elect to have communications sent to a legal representative for a particular charge or for all charges.

If an organization would like to designate a legal representative for a particular charge, the organization may add a legal representative through the Respondent Portal. Once logged in, the “Contacts” pane appears on the right side of the screen. Select “Add Legal Representative” and provide the appropriate contact information.

If an organization would like to designate a legal representative to manage all of its charges, the organization must provide the EEOC with a “Letter of Representation.” Please let us know if you would like to do this, as we are happy to assist you with this process.

Investigation Procedure

Previously, when an employer was faced with an EEOC charge, the employer or employer’s counsel would submit a position statement with supporting documentation defending the charge to the EEOC. The charging employee would not have the opportunity to view or respond to the position statement. Based on the information provided in the initial charge and the employer’s position statement, the EEOC would determine if there was probable cause.

With the January 1, 2016 changes, the EEOC now permits the charging party the opportunity to view the employer’s position statement and its non-confidential attachments, as well as respond to the content. The EEOC’s probable cause determination is now made in light of the initial charge, the employer’s position statement, and any responses to the position statement.

Given charging parties’ newfound access to employer position statements, it is increasingly important that position statements be carefully crafted so as not to inadvertently reveal confidential or excess information. Remember: An employer’s position statement should defend against the charges; it should never be detrimental to the employer. To ensure that your organization’s position statement best serves you, we strongly encourage you to consult with legal counsel any time your organization is faced with an EEOC charge.

Questions?

If you have any questions related to the EEOC’s new investigation procedures, we invite you to contact one of our attorneys at Kastner Westman & Wilkins, LLC.