EEOC Will Provide Position Statements to Employees While Charge Is Pending...But

the door does not swing both ways.

When an employee files an administrative charge or complaint with the Equal Employment Opportunity Commission, the agency usually requires the employer to provide a position statement. A position statement is a response to the complaint charge, which is often a letter explaining the legitimate reason for action taken, along with a response to requests for information.  The EEOC uses the charge and position statement to investigate whether there is "reasonable cause" to find a violation of the federal anti-discrimination laws.

The position statements are usually subject to disclosure under the federal Freedom of Information Act during later litigation.  However, under a revised policy, employees who file the charge (and their lawyers) can simply ask for the position statements while the charge is pending. That gives the employees and their counsel what is known as "free discovery" It also gives them a chance to respond to the position statement.

The "but" in the title of this post is that the EEOC will not provide the employer with the Employee's response to the position statement upon request.  So, employers and their lawyers do not get a "free look" at the employee's proof of discrimination or harassment.

Writing a good position statement is key for several reasons.  Of course it will influence the EEOC's decision on the merits of the charge. But it also will influence the employee's lawyer's decision regarding whether to take a case. And it will affect the employer's litigation position later if there is a lawsuit.  Accuracy is important, because when an employer's reasons change over time, that can be used as proof of a discriminatory motive.

The EEOC's policy is explained on the agency's website here. The EEOC also provides tips to employers and employees linked on its site.

California Fair Employment and Housing Council Considering Regulations Limiting Consideration of Criminal History

The California Fair Employment and Housing Council has taken the first step to issue regulations that would limit employers' consideration of criminal history.  The proposed regulations expressly incorporate a number of existing laws.  They also explain how "disparate impact" standards will be applied to employer practices regarding criminal records.

Some highlights:

- The regulations expressly incorporate bans on consideration of arrest records that already appear in the Labor Code;
- No consideration of any conviction referred to a pre-trial or post-trial diversion program;

- No consideration of expunged, judicially dismissed, or statutorily eradicated convictions;

- Employers may not take action based on "non-felony" marijuana possession convictions more than two years old.  Unhelpfully, they don't say how the two years is measured (neither does the Labor Code section upon which this provision is based).

- The regulations explain that public sector employers may not consider convictions until after the employer determines the applicant meets minimum qualifications for the job.  This is so-called 'ban the box," meaning that public sector applications cannot ask for conviction information. This provision does not affect private sector applications.

- Local ordinances containing tougher proscriptions (such as San Francisco's) are preserved.

- Employers must ensure consideration of convictions do not impose an "adverse impact" on minorities or others protected by anti-discrimination laws.  However, employers may establish that the consideration of a previous conviction is "job-related and consistent with business necessity."  What does that mean?

The criminal conviction consideration policy or practice needs to bear a demonstrable relationship to successful performance on the job and in the workplace and measure the person’s fitness for the specific job, not merely to evaluate the person in the abstract. In order to establish job-relatedness and business necessity, any employer must demonstrate that the policy or practice is appropriately tailored, taking into account at least the following factors:
(A) The nature and gravity of the offense or conduct;
(B) The time that has passed since the offense or conduct and/or completion of the sentence; and
(C) The nature of the job held or sought.

- Employers have to show that bright-line disqualifications distinguish between applicants and employees that do or do not pose an unacceptable level of risk.  That means there has to be a way to conduct an individual assessment of the applicant notwithstanding the crime.

- Employers that consider convictions older the seven years are subject to a rebuttable presumption that the practice is NOT job-related.

- Employers must give employees a chance to explain a conviction is inaccurate.

- Even if the employer demonstrates its conviction policy is job-related and consistent with business necessity, the applicant can show there are less discriminatory alternatives, "such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualification or risk as accurately without significantly increasing the cost or burden on the employer."

- The proposed regulation does not apply when laws require elimination of applicants who are convicted of certain crimes.

The FEHC will be vetting the proposed regulations via a notice and comment period. There will likely be revisions as well. But it appears that California employers will have to conform their policies and practices regarding convictions to new rules in the months to come.  We will keep you posted.

The Council has published more information about the comment period and proposed regulations here.