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.