posted on Monday, October 16, 2006 10:59 AM
by
Lou Michels
We're the Government, We're Here to Help
Employers giving sensitive or confidential data in response to an EEOC request for information need to be aware that the Commission is under no obligation to safeguard that information from later inquiries. Venetian Casino Resort challenged the EEOC in federal court over its disclosure procedures. Venetian's argument, reduced to its essentials, was that the EEOC is constrained by Title VII and a variety of other federal laws from releasing information designated by employers/respondents as trade secrets, confidential information, or otherwise protected business proprietary information, without notice to the business. Venetian's focus was on a request for information relating to at least 11 hiring discrimination charges filed against the casino several years earlier. The casino did not want to produce the charges to the EEOC because it believed that the commission would simply pipeline the information to claimants and their counsel in a current action, without the formal protections of the Freedom of Information Act process.
Unfortunately, the district court didn't see it that way. The court noted that the commission has always interpreted Title VII's limitation on the commission's ability to publicly disclose facts gathered during an investigation as allowing disclosure when disclosure was deemed necessary for securing appropriate relief. As a result, there is no protection for an employer seeking to have information it submits to the commission not disclosed to a charging party without notice to the employer. The court also found that other federal law intended to protect trade secrets or confidential information did not apply under these circumstances.
What does this mean for employers? It means that it is virtually impossible for a company, once it has released information to the EEOC, to prevent that information from falling into the hands of a charging party and her counsel. Keep that in mind the next time you are facing a potential class action.