The United States Equal Employment Opportunity Commission is required to review many claims for discrimination, including claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. In the course of investigating discrimination claims, the EEOC frequently asks employers to produce documents related to the claim. If the employer refuses to produce documents, the EEOC can issue an administrative subpoena and ask federal courts for assistance in enforcing the subpoena.
A Wendy’s restaurant franchisee in Tennessee recently won a victory for employers in resisting a far-reaching document request. EEOC v. Southeast Food Svcs. Co, No. 3:16:MC-46-TAV-HGB, 2017 WL 1155040 (E.D. Tenn. Mar 27, 2017). In that case, the franchisee offered a promotion to an employee, but required the employee to sign a release of all potential claims in order to receive the promotion. Even though she possessed no claims, the employee refused to sign the release. As a result, the franchisee withdrew the promotion offer. Thereafter, the employee claimed that withdrawal of the promotion was discriminatory. The franchisee admitted the reasons for withdrawing the promotion, but denied any discrimination.
While investigating the employee’s claim, the EEOC submitted a document request and a subpoena seeking the identity and contact information of all: (1) current and former employees since December 4, 2012; (2) current and former employees who signed a release since December 4, 2012; and, (3) current and former employees promoted since December 4, 2012. When the franchisee refused to provide that information, the EEOC filed an application in federal court for enforcement of the subpoena.
The EEOC’s subpoena authority is broad. It can obtain any information that is : (1) related to unlawful employment practices; and, (2) relevant to the charge under investigation. 42 U.S.C. § 200e-8(a). Most disputes with the EEOC focus on the relevancy requirement. In the Wendy’s case, the Court found that the EEOC did not meet its burden of demonstrating relevance. While the request for information might be relevant to other potential claims, it was not relevant to this case, where it was undisputed that the promotion was denied for failure to sign the release.
The Tennessee court relied heavily upon the Eleventh Circuit’s decision in EEOC v. Royal Caribbean Cruises, 771 F.3d 757 (11th Cir. 2014). In that case, the Eleventh Circuit noted that the term “relevant” has been generously construed in the EEOC’s favor, but that it should not be so broadly construed as to render the relevancy requirement ” a nullity.” Id. at 760. The Eleventh Circuit recognized that, sometimes, broad-reaching requests might be necessary, “where statistical data is needed to determine whether an employer’s facially neutral explanation for the adverse decision is pretext for discrimination.” Id. at 761. But, like the Wendy’s court, the Eleventh Circuit found that expansion of an investigation for discovery of potential, other claims was not a “relevant” reason.
Employers should carefully consider whether to resist a request for documents from the EEOC. In many cases, the EEOC requests legitimate, “relevant” information related to a charge of discrimination, and employers should comply with information requests in those cases. But, in some cases, the EEOC is clearly attempting to expand the scope of an investigation beyond the parameters of a particular case. The Wendy’s case and the Royal Caribbean case provide employers with good arguments for contesting those types of subpoenas.