In light of COVID-19 era mass layoffs and furloughs, many employers are faced with an uptick in Equal Employment Opportunity Commission (“EEOC”) investigations and charges of unlawful conduct. One facet of an EEOC investigation is a request for information and documents, which the EEOC may follow with an administrative subpoena for information and documents. The following article discusses the ways in which an employer may succeed in challenging the scope of an EEOC subpoena as well as an employer’s obligation to comply with the subpoena.
Process for Challenging an EEOC Subpoena:
At the outset, employers should note that courts have held that employers first must exhaust administrative remedies by requesting revocation or modification of the subpoena; otherwise, they may waive the right to challenge subsequent judicial enforcement.
If an employer wishes not to comply with a subpoena, it may petition the issuing EEOC office to revoke or modify the scope of the subpoena. The petition to revoke or modify must be filed within five days of service of the subpoena. In the petition, the employer must identify each portion of the subpoena it does not intend to comply with and the basis for noncompliance.
Within eight days of receiving the petition “or as soon as practicable,” the EEOC District Director or General Counsel must:
1) Decide whether to revoke or modify the petition;
2) State the reasons supporting the decision; and
3) Submit the proposed determination to the Commission for final review.
If the EEOC does not modify the subpoena and the employer does not provide the requested information, the EEOC may then seek judicial enforcement of the subpoena. With an understanding of the method by which employers may challenge a subpoena, the following will address the means by which employers may succeed in doing so.
The EEOC has broad access to information.
Title VII gives the EEOC a broad right of access to any evidence relevant to the charge under investigation. In determining whether to enforce an EEOC subpoena, courts consider:
1. Whether the information requested is relevant;
2. Whether the requests are burdensome or harassing; and
3. Whether privacy or confidentiality concerns prohibit the subpoena of personal, confidential, or medical information.
The term “relevant” should be given “generous” construction and covers “virtually any material that might cast light on the allegations against the employer.” McLane Co. Inc. v. EEOC, 137 S.Ct. 1159, 1165 (2017) (quoting EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984)). But the district court must not use a subpoena enforcement proceeding as an opportunity to test the strength of the underlying complaint. The district court should only “satisfy itself that the charge is valid and that the material requested is relevant to the charge” Id. at 1164-65.
Because of the broad scope of relevance and the public policy behind the EEOC’s investigatory authority, courts generally require a more substantial showing to restrict an EEOC subpoena than they require to restrict a party’s discovery request in civil litigation. For example, courts will often consider the hours involved in manually reviewing personnel files to identify responsive documents as a necessity to the EEOC’s ability to perform its function—even when doing so may take up to 100 hours. As a result, employers should focus their objections on relevance rather than burden and cost when possible.
Which arguments are most successful?
Employers are most likely to succeed in arguing that the requested documents and information are irrelevant to the type of unlawful conduct alleged in the charge. This is because courts rely on the type of unlawful conduct alleged in an employee’s charge to determine relevance; however, they are not bound by the employee’s specific factual allegations. The application of these concepts is best illustrated by way of example.
Type of unlawful conduct
The EEOC’s subpoena must be limited to information relevant to the type of unlawful conduct alleged in the charge. In a Texas case, an employee’s EEOC charge stated that he was “discriminated against because [he] refused to support or perform discriminatory acts against other employees, reported the discrimination taking place, and in retaliation for same was terminated, in violation of Title VII.” He also included an addendum noting his belief that the employer’s hiring policies discriminated on the bases of race, sex, and age. However, he checked only the box for retaliation. The EEOC subpoenaed data from the employer relating to the employee’s allegation of discriminatory hiring practices, and the employer objected that the request was overbroad and irrelevant to the employee’s charge.
The Court held that the subpoena for information on hiring practices was irrelevant because the employee did not suffer from race, sex, or age discrimination and was not a member of those protected classes. The Court also found persuasive that the employee did not check the box for race, sex, or age discrimination to indicate that he was bringing those claims on behalf of a third party. Therefore, employers should consider whether the EEOC’s subpoena is limited to the specific type of unlawful conduct alleged before turning over responsive documents and information. A great starting place for this determination is the box checked in the charge and well as the type of unlawful conduct listed in the EEOC portal as this information indicates the primary purpose of the EEOC’s investigation.
Specific factual allegations
On the other hand, when an employee’s charge may shed light on additional instances of unlawful conduct that the employee may have experienced, even when not specifically articulated therein, many courts enforce the EEOC’s subpoena for information related to the additional instances of unlawful conduct. For example, when the charge investigated is limited to an alleged failure to accommodate an employee’s disability, courts may enforce a subpoena for information about company-wide drug disclosure policies to evaluate whether those policies have a disparate impact on the employee. In ordinary first-party discovery, such a request would be seemingly unrelated to whether the employee was denied a requested accommodation; but this type of request may be considered relevant to an EEOC subpoena because it might cast light on additional instances of discrimination against the employee’s disability. As a result, employers should not rely solely on arguments asserting that the employee has not alleged a specific act of unlawful conduct in support of the documents requested.
The Bottom Line
The EEOC’s broad right of access to information and courts deference to the public policy in support of EEOC investigations requires employers to provide more information than they would provide otherwise in run-of-the-mill discovery during litigation. However, the EEOC’s authority is not without limit, and employers should be sure to identify the specific type of unlawful conduct alleged to avoid providing more information than is necessary to address the employee’s charge.
Further, much of an employer’s concern over the scope of the EEOC’s initial request for documents and information may be narrowed with a pre-subpoena request to the investigator handling the charge. Investigators are often willing to work with employers to bring the investigation to resolution without the time and effort involved in administering and enforcing a subpoena. This is the best practice to ensure that an employer has preserved its right to later challenge the EEOC’s enforcement of the subpoena, if necessary.