A recent opinion by the U.S. District Court for the District of Columbia permits the Equal Employment Opportunity Commission (EEOC) to lawfully release confidential and proprietary documents submitted by employers in response to an EEOC Charge of Discrimination to the charging party and related individuals. Even more troubling, the Court has authorized such disclosures without the EEOC having to first notify employers that it wishes to do so.

In Venetian Casino Resort v. EEOC, 2006 WL 2806568 (D.D. Cir.), the Plaintiff Casino was accused of failing to hire multiple individuals based on age, race, and color in violation of the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964. The Title VII charges were settled, but the age discrimination charges were not. In response to the age discrimination charges, the Casino challenged the EEOC's disclosure policy set forth in Section 83 of the EEOC Compliance Manual, which permits the EEOC to disclose information, including confidential and proprietary documents, from case files to parties, counsel, and incidental third parties without giving prior notice to employers. The Casino argued that the foregoing disclosure policy violated federal laws, including Title VII, the Trade Secrets Act, the Freedom of Information Act, Executive Order No. 12,600, the Copyright Act, and the Administrative Procedure Act. In doing so, the Casino contended, among other things, that said disclosure would permit parties, counsel, and third parties to get their hands on sensitive documents that could contain trade secrets.

The Court disagreed and held that the EEOC's disclosure policy did not violate federal law. As part of its ruling, the Court opined that the EEOC's ability to disclose documents will speed and/or enhance the EEOC's investigations because it can quickly present others with information to corroborate or rebut. The Court also felt that the EEOC's ability to disclose will lead to a larger number of resolutions short of trial in that parties will have more detailed information to analyze their strengths and weaknesses in mediations and settlement negotiations.

As a result of this case strengthening the EEOC's disclosure policy, it is important that employers be extremely careful when turning documents over to the EEOC (and, for that matter, the EEOC's state counterparts such as the Pennsylvania Human Relations Commission). In order to take extra precautions to protect trade secrets and other confidential information, counsel should be engaged to review company documents before they are produced to the administrative agencies. Counsel can ensure that responses to request for production are narrowly tailored to include only responsive documents, as well as take other precautionary measures -- such as lodging objections to productions -- to protect the disclosure of sensitive information."

Rhoads & Sinon offers a full range of labor and employment counseling and representation. Feel free to contact Mr. Shill or any of our employment attorneys directly for more information about our firm and its available services