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ADMINISTRATIVE AGENCIES The long reach of EEOC subpoenas

Oklahoma Employment Law Letter - \January 1, 2010

By Charles S. Plumb

Title VII of the Civil Rights Act of 1964 arms the Equal Employment Opportunity Commission (EEOC) with broad power to subpoena your records and information. When that type of discretion is combined with an expressed intention to ramp up in¬vestigations, you should expect an increase in the scope of information and documents requested by the EEOC — and potentially broader-ranging subpoenas. United Parcel Service’s (UPS) recent experience with the commission serves as an example.

UPS’ national policy
UPS didn’t always allow its em¬ployees who came in contact with the public to wear facial hair below their lower lip. The company later created “appearance guidelines,” which were intended to provide limited exceptions from the facial hair prohibition based on religious beliefs. The guidelines applied to all UPS employees and established a process for workers in a public-contact position to submit a request to their su¬pervisors for permission to have facial hair based on their religious beliefs.

Under the guidelines, the initial request to a supervisor was forwarded to the district HR manager and oth¬ers in various corporate departments. Requests for an accommodation to the “no-beard rule” were reviewed and decided on a case-by-case basis, with local HR staff taking primary responsibility for the final decision.

The two beard requests
Bilal Abdullah interviewed for a driver’s helper and sorter position with UPS in Rochester, New York. When he was told during the interview process that he would have to shave his beard, he explained that his Muslim religious beliefs required him to maintain a beard. Later in the interview process, he declined to complete a form stating he would shave his beard. When UPS didn’t hire him, he filed a Title VII religious discrimination charge with the EEOC’s Buffalo office.

Muhammed Farhan originally worked as a UPS package handler in Dallas. As part of his Muslim religious beliefs, he began to grow a beard. When he was assigned to a full-time driver position, UPS told him he wouldn’t be able to keep his beard. Farhan spoke with his manager and a union representative and requested a religious accommodation to allow him to drive a truck and maintain his beard. His manager said he would have to return to his position as a package handler if he wanted to keep his beard.

When Farhan asked for a religious accommodation form from HR, he was told there was no such form. He ultimately filed a charge of religious discrimination with the Texas Workforce Commission and the EEOC. After he filed his complaints, UPS told him he could complete a request for religious accommodation for the full-time driver position. His request was granted that same month.

The EEOC’s Buffalo office sent UPS a “request for information” seeking documents concerning UPS’ appearance guidelines dating back to January 1, 2004, on a nationwide basis. UPS objected to the request because it was broader than the individual charges of discrimi¬nation filed by Abdullah in Rochester and Farhan in Dallas.

The EEOC’s subpoena powers
Title VII charges the EEOC with investigating alleged employment discrimination to determine whether there is reasonable cause to believe discriminatory treatment has occurred. It grants the EEOC the ability to issue subpoenas to assist in its investigation. If an employer opposes a request for information, the commission may enforce its request with a subpoena issued by a federal court. At the charge investigation stage — before a lawsuit is filed — the EEOC doesn’t need to establish that discrimination actually occurred. It only needs to show that the information sought is relevant to the charge or charges under investigation.

When UPS ob¬jected to the EEOC’s request for nationwide documents on its appearance guidelines dating back to 2004, the EEOC went to federal court to enforce its subpoena. Ultimately, the court sided with the commission, enforced the subpoena, and required UPS to give up the requested information for all of its facilities dating back to 2004. EEOC v. United Parcel Service, Inc., 107 FEP Cases (BNA) 1345 (2nd Cir., 2009).

The shape of things to come?
Many agencies charged with investigating allegations of wrongdoing in the workplace have recently been outspoken about their plans to increase and undertake more vigorous investigation and prosecution activities. The EEOC is no exception. In addition to broader requests for information, you should anticipate an increased willingness by the EEOC to force the issue through the courts.
 
Nevertheless, you still have the right to make reasonable objections to information requests that are unfair, overly burdensome, or irrelevant. When faced with overly broad information requests, ask the agency seeking the information to explain the reasonableness and necessity of its request. It always makes sense to discuss the possibility of some “middle ground” with an investigating agency to resolve the information request dispute before battling it out in court.