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  1. #1
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    Jan 2017
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    Default Employee Privacy Rights when Responding to an EEOC Charge

    My question involves labor and employment law for the state of: New York

    When a company responded to EEOC Charge, they included documents with Personal Information of multiple employees. Now, when someone request a copy of the EEOC File, they will also get the Personal Information of others.

    Is this allowed?

  2. #2
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    Oct 2016
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    4,301

    Default Re: Employee Privacy Rights when Responding to Eeoc Charge

    Of course it is allowed. I is virtually impossible to answer an EEOC claim without releasing the personal information of other employees.

  3. #3
    Join Date
    Oct 2014
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    Default Re: Employee Privacy Rights when Responding to an EEOC Charge

    Quote Quoting Roger 36
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    My question involves labor and employment law for the state of: New York

    When a company responded to EEOC Charge, they included documents with Personal Information of multiple employees. Now, when someone request a copy of the EEOC File, they will also get the Personal Information of others.

    Is this allowed?
    The employer certainly may include in its response to the EEOC inquiry relevant information about other employees that relates the charge the agency is investigating. Indeed, no law restricts what the employer may provide to the EEOC in its response.

    But not just anyone can get the EEOC file as you seem to imply in your post. Several federal privacy laws apply here that will prevent the agency from disclosure of these records to third parties. The federal Privacy Act of 1974 restricts federal agencies from releasing information in its records about individuals outside of the agency without that individuals consent with the exception of release to the following:

    (1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties;
    (2) required under section 552 of this title;
    (3) for a routine use as defined in subsection (a)(7) of this section and described under sub- section (e)(4)(D) of this section;
    (4) to the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of title 13;
    (5) to a recipient who has provided the agen- cy with advance adequate written assurance that the record will be used solely as a statis- tical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;
    (6) to the National Archives and Records Ad- ministration as a record which has sufficient historical or other value to warrant its con- tinued preservation by the United States Gov- ernment, or for evaluation by the Archivist of the United States or the designee of the Archi- vist to determine whether the record has such value;
    (7) to another agency or to an instrumental- ity of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activ- ity for which the record is sought;
    (8) to a person pursuant to a showing of com- pelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;
    (9) to either House of Congress, or, to the ex- tent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;
    (10) to the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the Govern- ment Accountability Office;
    (11) pursuant to the order of a court of com- petent jurisdiction; or
    (12) to a consumer reporting agency in ac- cordance with section 3711(e) of title 31.

    5 U.S.C. § 522a(b). The federal Freedom of Information Act (FOIA), which is the federal law that mandates disclosures of federal agency records upon request, mirrors the Privacy Act in that it excludes from release under FOIA any record that is protected from disclosure by other federal law, which would include the Privacy Act. 5 U.S.C. § 522(a)(8). These rules apply to all federal agencies.

    In addition to that, there is a law specific to the EEOC that applies as well. The EEOC was created in the Civil Rights Act of 1964, in Title VII (the same Act that makes it illegal for employers to discriminate against employees on the basis of race, color, religion, national origin, and sex). Section 706(b) of that Act (42 U.S.C. § 2000e-5(b)) specfically prohibits the EEOC from disclosure of its investigative records prior the EEOC itself filing a lawsuit against an employer on a charge of discrimination. Thus, the EEOC states on its FOIA website that it will NOT release under FOIA “Investigative employment discrimination charge file records to a third party (someone who is not part of the case), including the press.” There is no other way that a member of the general public may request and obtain this information from the EEOC.

    The records may be disclosed pursuant to a court order. Thus, if the employee that filed the charge were to sue the employer and the employee sought the EEOC investigation file to help with the lawsuit against the employer, the employee could seek a court subpoena ordering the EEOC to dislose the records. But apart from that sort of limited situation, I don’t see anyone else outside the EEOC obtaining it.

    So just who is the “someone” requesting a copy of the EEOC investigation file that you mention? If you can answer that, then we can figure out whether or not that person could actually get that information from the EEOC.

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