The debate over the scope and breadth of Equal Employment Opportunity Commission (EEOC) administrative subpoenas continues throughout the federal court system with the Supreme Court expected to jump into the fray in either its 2017 or 2018 term. In the past, courts were hesitant to question the valid scope or breadth of an EEOC administrative subpoena. However, this trend has shifted over the past few years with more courts taking it upon themselves to question subpoenas that appeared to be overbroad. The 10th Circuit recently joined that trend, refusing to enforce an EEOC administrative subpoena due to its broad scope.
In EEOC v. Tricore Reference Laboratories, 16-2053, the District Court of New Mexico refused to enforce an EEOC administrative subpoena. The 10th Circuit was asked whether this refusal was an abuse of discretion. The 10th Circuit concluded that there was no abuse of discretion and affirmed the district court’s ruling.
The relevant facts were that TriCore believed the employee was unable to perform the essential functions of her job with or without a reasonable accommodation and invited her to apply for jobs within her physical restrictions. The employee was terminated when she failed to apply for other positions. TriCore explained to the EEOC that it had provided the employee a reasonable accommodation by offering her the chance to apply for other positions within TriCore. As the EEOC explained in its application to enforce the subpoena, it viewed TriCore’s response as suggesting a violation of the Americans with Disabilities Act (ADA) because the EEOC thought the ADA required TriCore to reassign the employee to a vacant position rather than merely provide her an opportunity to apply for another position. TriCore’s statement led the EEOC to suspect that TriCore had a “companywide policy and/or practice of refusing to provide reassignment as a reasonable accommodation to qualified individuals with disabilities."
The EEOC informed TriCore in a letter that it was expanding the scope of its investigation to include the failure to accommodate persons with disabilities and/or failure to accommodate women with disabilities (due to pregnancy). This additional information, according to the EEOC, was related to the underlying charge or was based on evidence uncovered during the EEOC’s investigation of the underlying charge. The EEOC cited its Compliance Manual for its authority to expand the investigation. As part of its expanded investigation, the EEOC sent TriCore another letter requesting: (1) a complete list of TriCore employees, along with their personal identifying information who had requested an accommodation for disability and (2) a complete list of TriCore employees who had been pregnant while employed at TriCore, including the employees’ personal identifying information and whether they sought or were granted any accommodations. The EEOC sought that information for a four-year time frame. The EEOC subsequently reduced the time period to a three year time frame. The EEOC ultimately issued a subpoena requesting the information requested in the letters once TriCore refused to comply with the letter requests.
On review, the 10th Circuit noted that the EEOC need only show its subpoena is “relevant” to its investigation. To show subpoenaed information is relevant, the EEOC must show it has a realistic expectation rather than an idle hope that the information requested will advance its investigation. See EEOC v. Konica Minolta Bus. Sols. USA, Inc., 639 F.3d 366, 369 (7th Cir. 2011) (quotations omitted). It must also establish the link between the EEOC’s investigatory power and the charges of discrimination. See EEOC v. Shell Oil Co., 466 U.S. 54, 65 (1984).
First, in addressing the disability aspect of the subpoena, the 10th Circuit relied upon its own precedent holding that pattern-or-practice evidence of discrimination was not relevant to the individual charges then under investigation. A single discriminatory act does not, by itself, warrant a broader pattern-or-practice investigation.
With respect to the pregnancy discrimination comparator evidence aspect of the subpoena, the 10th Circuit found the subpoena to be overbroad because the pregnancy request sought information about pregnant employees who never sought an accommodation. Thus, the subpoena was not relevant to the disparate treatment claim that was raised by the complaint. The 10th Circuit did disagree with the district court that there was some relevance to the subpoena for pregnancy information but further held that the EEOC waived those arguments at the district court level.
The 10th Circuit case is a good example of why employers should continue to fight expansive EEOC administrative subpoenas, especially where the subpoena is seeking pattern and practice information in an individual discrimination case. Keep in mind the short time period that an employer has to object to a subpoena, in most circumstances five days after receipt. There are some legal arguments that can be made where the employer objects beyond the five day time period but those arguments are not the scope of this article. Please contact Joe Spitzzeri if you’re in that situation and he can assist in providing those arguments along with equitable arguments such as equitable estoppel and/or laches.