A couple of recent federal rulings have given encouragement to employers facing overbroad and often unreasonable federal agency subpoena demands for a broad array of employment information.  In a recent federal appeals court ruling, the court affirmed a district court judge’s ruling that the EEOC was not entitled to enforce its subpoena requesting information.  EEOC v. TriCore Reference Labs, 129 FEP Cases 1741 (C.A. 10, 2/27/17).  The law provides that when investigating charges of discrimination, the EEOC may obtain evidence that "relates to unlawful employment practices covered by Title VII and is relevant to the charge under investigation."  In the course of the case, the employee claimed alleged violations of the Pregnancy Discrimination Act, and the Americans’ with Disabilities Act, for failing to accommodate the claimant’s work schedule and responsibilities.  The charging party claimed both disability and pregnancy discrimination in denying her request for accommodation.  The EEOC informed the employer 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."  It sought from the employer a complete list of employees who requested an accommodation for disability and a complete list of employees who had been pregnant and whether they sought or were granted any accommodations, for a four-year time frame.  The employer petitioned the EEOC to revoke the subpoena arguing it was unduly burdensome and a "fishing expedition."

The lower court judge denied the EEOC’s subpoena application finding that the EEOC’s real intent in requesting the information was difficult to pin down.  On appeal, the EEOC argued two purposes: (1) to determine whether the employer had a pattern or practice of violating the ADA; and (2) to determine whether the employer treated the claimant less favorably than other comparable employees.  The EEOC said these purposes correlated to the two subpoena requests - with the disability request relating to the pattern-or-pattern rationale and the pregnancy request relating to the comparator-evidence rationale. 

The appeals court found that the lower court did not abuse its discretion in denying the broad subpoena request.  Among other things, the court cited an earlier precedent that the EEOC was entitled only to evidence "relevant to the charges under investigation," rejecting a notion that an individual charge of discrimination could be part of a pattern or practice discrimination charge and stating that such a rationale would stretch the relevance requirement so broadly as to render it a nullity.  As to the argument pertaining to seeking information for comparative analysis, the court found the EEOC’s paltry explanation of how the pregnancy request was relevant before the district court lacking. 

In another related development, an administrative law judge at the Department of Labor ruled in March that Google does not have to give the OFCCP pay information dating back to the company’s formation and the names and contract information for some 20,000 workers at its California headquarters requested as part of a random government audit.  Of particular interest is the fact that Google apparently had only a  $600,000 federal contract, and the company estimated that compiling the requested information would cost several million dollars.  The judge denied the request for summary judgment in the DOL lawsuit seeking to force Google to turn over the information, saying the DOL request - which included job and salary histories among 38 categories of data - was not reasonable.  Later, the judge granted Google’s request for a protective order on the salary data.  OFCCP v. Google, Inc., Dep’t of Labor A.L.J., No. 217-OFC-0004.

Also in April, the U.S. Supreme Court made a ruling in a subpoena enforcement case as to what standard an appeals court should use in reviewing lower court decisions to enforce or quash an EEOC subpoena.  In addressing the issue, the Supreme Court mentioned that if the charge is proper and the material requested is relevant, the court should enforce the subpoena unless the employer establishes that the subpoena is "too indefinite," has been issued for an "illegitimate purpose" or is unduly burdensome.  McLane Co. v. EEOC, 129 FEP Cases 1825 (U.S., 4/3/17).

Editor’s Note - It is common for employers to receive broad information request demands from plaintiffs in lawsuits as well as governmental agency investigations.  These current rulings provide encouragement for employers to resist overbroad and unreasonable information demands.

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