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Are You Ready To Fight Discrimination Charges With One Hand Tied Behind Your Back?

The EEOC recently announced changes to its rules which will give an employee who has filed a Charge faster access to the employer’s Position Statement and non-confidential attachments. These changes went into effect on January 1, 2016.

The EEOC’s investigation process begins when an employee who believes his Title VII rights have been violated files a Charge with the EEOC describing the employer’s alleged unlawful conduct. The employer then has 30 days to respond to the Charge by submitting a Position Statement.  The Position Statement explains the employer’s side of the story.

Previously, the employee could not see the employer’s Position Statement. Now, the EEOC will provide the Position Statement and non-confidential attachments upon request.  The employee will then have twenty days to respond to the Position Statement.

This rule change allows the employee to see the facts and arguments the employer will use to defend itself much earlier in the process. Under the old system, the employee could not see the employer’s Position Statement unless he/she filed a lawsuit or otherwise after the investigation closed.

This could prove to be an advantage to employers by discouraging some employees from pursuing their case. If the employee (or his/her lawyer) sees the employer has a strong case, he/she may choose not to pursue a lawsuit after the EEOC closes its case.  This will spare the employer the significant expense and other pain from litigation.

On the other hand, the new rule hurts employers because it gives employees a full picture of the employer’s defenses while leaving the employer in the dark as to the employee’s full case. With such a road map of the weaknesses of their case, employees will have the opportunity to do more research, find more facts or witnesses, and prepare stronger counterarguments to the employer’s position.  Only time will tell if plaintiffs will use this advantage.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.