The broad reach of EEOC subpoenas

Any employer who has ever responded to an EEOC charge knows that the EEOC often makes very broad requests for information. Smart employers know that it is in their interest to try to narrow the scope of their responses. Sometimes the EEOC allows this, but sometimes it pushes back, threatening to go to court to enforce a subpoena for information. Two questions then arise: Will the EEOC really go to court to enforce a subpoena? and Will the court enforce the subpoena? Unfortunately, a recent Seventh Circuit ruling suggest that the answers to both questions is Yes.

In EEOC v. Konica Minolta Business Solutions, the complainant filed a charge alleging that he was terminated because of his race. Like most other complainants, he also generally alleged that he was "subject to different terms and conditions of employment." During the course of the investigation, the EEOC learned that the company employed few black employees at its four Chicago area facilities, and that most of these employees worked at one of the facilities. Suspecting discriminatory hiring practices, the EEOC issued a subpoena requesting hiring information for all sales personnel at the four facilities. The company refused to comply, the EEOC filed an enforcement action, and the court entered an order enforcing the subpoena.

On appeal, the Seventh Circuit emphasized that the EEOC has broad investigatory powers and may go beyond the allegations in the complainant's charge to investigate the overall conditions in the workplace, stating that the EEOC "is entitled generally to investigate employers within its jurisdiction to see if there is a prohibited pattern or practice of discrimination." In light of this, the court had "no trouble" concluding that the information sought by the EEOC was proper.

What does this mean for you? Clearly, this is an unwelcome development for employers, whose biggest fear in this area is that the run-of-the-mill discrimination charge turns into a general inquisition into the company's employment practices. The EEOC will no doubt become more aggressive with its requests for information in light of this ruling. Nonetheless, the ruling suggest two avenues for countering such aggressive tactics. First, the opinion suggested that the employer may have been too cooperative at first with the EEOC's information requests, which led to the EEOC learning a lot about the company's hiring statistics. In light of this, it is likely better to take a strong stand at the outset of the investigation to the production of information. Second, the opinion emphasized that the employer failed to show that compliance with the request was an undue burden. Employers should consider focusing on this defense in opposing EEOC subpoenas.