Based on a recent decision from the United States Supreme Court, resistance to a subpoena from the Equal Employment Opportunity Commission (EEOC) will likely be futile.
In the typical case, a charge from the EEOC is accompanied by an information request seeking a list of employees with various identifying information, including home address and telephone number.
Often, these requests are burdensome and seem to be mere fishing expeditions because they seek a large amount of data about departments, facilities and job classifications that are unrelated to the charge at hand.
Hand Over Everything
In the case that the Supreme Court reviewed, Damiana Ochoa took a maternity leave from her physically demanding job with the employer. When she sought to return, the company applied its standard rule of requiring a physical evaluation of everyone hired into that job or returning to it after more than 30 days.
Ochoa failed the evaluation three times and was subsequently terminated, leading her to file a charge of sex discrimination with the Equal Employment Opportunity (EEOC). As part of their investigation, the EEOC issued a relatively standard information request seeking the names, addresses, telephone numbers and other identifying information of every employee who had been required to undergo the evaluation. However, when they expanded the inquiry to cover the company’s entire national operations (and also to request information regarding possible age-based motivations), the company declined to respond, leading the EEOC to issue subpoenas for the requested information.
Still, the company balked, leading the EEOC to file an action with the federal district court to enforce the subpoenas. The District Judge declined, finding that the requested information to be irrelevant to the claims since the employees whose addresses and phone numbers were sought would not have any insight into whether the company’s practices were or were not illegal. The Ninth Circuit Court of Appeals reversed, leading to an appeal to the Supreme Court seeking a ruling on the correct standard to apply in evaluating the legitimacy of an EEOC subpoena.
A High Bar is Set
The Supreme Court declared that an EEOC subpoena should always be enforced unless a court concludes that it was an abuse of their discretion to issue it in the first place. This abuse-of-discretion threshold is a very high bar to meet, and is consistent with what the Supreme Court has already deemed proper for the National Labor Relations Board (“NLRB”), another federal agency that issues subpoenas under similar circumstances.
The Supreme Court did, however, give employers a little breathing room on this issue. They ruled that the decision to enforce an EEOC subpoena is not to be decided according to precise or standardized rules of what is or is not an abuse of discretion. Instead, each subpoena must be reviewed on a case-by-case basis according to the particular circumstances of the case at hand, and employers will still get a shot at proving that the subpoena seeks irrelevant information, is excessively burdensome or in some other manner is completely inappropriate.
Bottom Line
This was a disappointing decision for employer that will make defending EEOC charges more time-consuming and difficult.
Still, employers should continue trying to limit the scope of EEOC information requests through negotiation and compromise in the hope that the agency is not interested in receiving excessive information any more than you are in providing it.