Limits placed on EEOC subpoenas

published in Oklahoma Employment Law Letter | March 1, 2012

By Charles S. Plumb

Under federal employment discrimination statutes, the Equal Employment Opportunity Commission’s (EEOC) investigative powers include the ability to issue administrative subpoenas requiring an employer that is under investigation to provide information. If you object to an EEOC subpoena, the commission can seek a court order requiring you to provide the information sought. Employment laws give the agency wide discretion to subpoena employers. However, the information sought must be “relevant to the charge under investigation.” A February decision by the U.S. Tenth Circuit Court of Appeals (whose rulings apply to Oklahoma employers) shows that the EEOC’s ability to issue a subpoena is not without limits.

Two individual charges

Gregory Graves and Thomas Palizzi each applied for positions in Colorado as a conductor or conductor trainee with Burlington Northern Santa Fe Railroad (BNSF). After receiving conditional offers of employment, they were scheduled for medical exams. After the exams, BNSF rescinded the job offers based on the medical requirements and safety concerns of the conductor position. BNSF explained that they were free to apply for other vacant positions with the company for which they were qualified.

In February 2007, Graves filed an Americans with Disabilities Act (ADA) failure-to-hire discrimination charge with the EEOC; Palizzi filed his disability discrimination charge in October. After BNSF provided statements of position for both discrimination charges, the EEOC sent it a letter requesting information about every current and former employee throughout the country since 2006. BNSF challenged the scope of the request for two individual failure-to-hire claims in Colorado.

When BNSF objected to the EEOC’s letter, it received a subpoena requesting the same information. The EEOC also sent a letter informing BNSF that it had broadened its investigation beyond the failure-to-hire discrimination charges by Graves and Palizzi to include a “pattern and practice” of discrimination charge, which justified subpoenaing nationwide information for the last three years. The agency offered no explanation for expanding its investigation.

When BNSF didn’t comply with the EEOC’s subpoena, the agency asked a federal district court to enforce the subpoena it had issued and require BNSF to produce nationwide employee information going back to 2006. When the agency filed its action with the district court to enforce the subpoena, it included an affidavit stating that four similar disability charges against BNSF — filed in Kansas, Minnesota, Texas, and Wyoming — were pending. The EEOC provided that information to the court in support of enforcing the subpoena, but it never provided it to BNSF as justification for seeking information about its employees across the country for the last three years. The district court refused to enforce the subpoena, and the EEOC appealed to the Tenth Circuit.

Employer’s objection was right

The court of appeals agreed that the EEOC’s subpoena was too broad and refused to enforce the information request against BNSF. The court acknowledged the EEOC’s broad authority to investigate discrimination charges and subpoena information but emphasized that the information must be “relevant to the charge under investigation.” In this case, the EEOC was dealing with two individual charges of disability discrimination. There wasn’t a national “pattern and practice of discrimination” charge in place that could support a subpoena as broad as the one issued by the agency against BNSF.

The EEOC can’t wait until it’s before a court seeking enforcement of a subpoena to produce a letter stating that it’s treating two individual claims of discrimination as part of a “pattern and practice” of discrimination investigation. The court of appeals noted it was possible that individual discrimination charges like those filed by Graves and Palizzi could trigger a broader national “pattern and practice” of discrimination investigation in the future. However, at the time, their individual failure-to-hire charges in Colorado were insufficient to support an EEOC investigation seeking nationwide employee information going back to 2006. EEOC v. BNSF, Case No. 11-1121 (10th Cir., 2/27/12).

Keep in perspective

Employers should be realistic. The EEOC continues to have a lot of discretion when it comes to issuing subpoenas. However, as this case shows, when faced with a subpoena that exceeds the scope of the charge at issue, you can challenge the information request.