EEOC-Initiated Litigation - 2022 Edition

10 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP b. Cases Restricting The EEOC’s Subpoena Power After the Supreme Court affirmed the broad scope of the EEOC’s subpoena powers in McLane , employer victories have been few and far between. But there have been some employer-favorable cases. For example, in EEOC v. Kaiser Foundation Hospitals , 59 the U.S. District Court for the Central District of California accepted the Report and Recommendation of the Magistrate Judge, which allowed an employer to object to an EEOC subpoena even though it had failed to make timely objections to the subpoena, and slightly narrowed the scope of what the EEOC sought in the subpoena. In that case, the employer failed to petition to revoke or modify the subpoena within the five-day deadline imposed by EEOC’s regulations . 60 According to the EEOC, failure to strictly follow that timeline precludes an employer from challenging the subpoena except on constitutional grounds . 61 The District Court agreed that this requirement was an administrative remedy that generally must be exhausted before a recipient would be allowed to challenge the subpoena in court. But exceptional circumstances can sometimes allow for leniency. The District Court noted that the subpoena did not cite the regulation that imposed the five-day deadline, and that the EEOC never informed the employer that it had missed the deadline to petition for revocation. 62 Moreover, in its correspondence with the EEOC, the employer had repeatedly raised the objections that it was now making before the District Court. 63 Accordingly, the District Court held that it would consider the employer’s relevance and burdensomeness objections to the subpoena. With respect to the scope of what was requested in the subpoena, the Magistrate Judge first held that the charge sufficiently alleged class-wide discrimination, thus empowering the EEOC to investigate discrimination beyond the allegations of individual discrimination: “[i]t alleges the group of persons discriminated against (females), the discrimination methods (sexual harassment by the Pharmacist and/or failure by [employer] to take complaints of sexual harassment seriously), and the ‘periods of time’ in which the discrimination occurred (2017 and onward).” 64 Relying on the Ninth Circuit’s remand decision in McLane , the District Court held that the pedigree information was relevant because “where a discrimination charge sufficiently alleges both individual and systemic discrimination, the EEOC may properly interview employees beyond those involved in the individual discrimination to determine whether there is a pattern or practice of discrimination.” 65 However, the District Court agreed that the EEOC had not articulated a clear basis for extending its investigation to all current and former employees of the facility where the charging party did not work . 66 The charge alleged sexual harassment perpetrated by a single pharmacist. It was not evident how interviewing, for example, IT employees, would shed light on those matters. Accordingly, the Magistrate Judge recommended that the EEOC’s subpoena request be limited to current and former employees who worked during the shift that that pharmacist worked and at the facilities where he worked, as well as information concerning female employees at another facility who submitted a claim of sexual harassment during the relevant time period . 67 The District Court agreed . 68 59 EEOC v. Kaiser Foundation Hospitals , No. 2:19-MC-175-JAK-FFM, 2020 WL 70885 (C.D. Cal. Jan. 3, 2020). In that case, the charging party had alleged discrimination on the basis of sex at a pharmacy facility that was primarily responsible for filling mail- order prescriptions. The EEOC sought, among other things, “pedigree” information regarding employees who worked at another location, which housed other departments and operations, including a pharmacy wholesale operation, a pharmacy training department, and IT and engineering personnel. EEOC v. Kaiser Foundation Hospitals , No. 2:19-MC-175-JAK-FFM, 2019 WL 7494905, at *1-2 (C.D. Cal. Dec. 11, 2020). The employer objected to providing that information as irrelevant to the single allegation of sex harassment brought by an employee who worked in a separate facility. 60 Id. at *4. 61 Id. 62 Id. at *5. 63 Id. 64 Id. at *8. 65 Id. (citing EEOC v. McLane Company, Inc. , 857 F.3d 813, 816 (9th Cir. 2017), and EEOC v. Nationwide Janitorial Services, Inc. , No. 18-CV-96 , 2018 WL 4563053, at *4 (C.D. Cal. Aug. 17, 2018)). 66 Id. 67 Id. 68 Kaiser Found. Hosps. , 2020 WL 70885, at *1. See also EEOC v. Serv. Tire Truck Centers , No. 1:18-CV-1539, 2018 U.S. Dist. LEXIS 178025, at *11-12 (M.D. Pa Oct. 17, 2018) (holding that the EEOC had not explained why entire personnel files are necessary or relevant to its investigation, and circumscribed the subpoena to exclude sensitive information such as certain medical and healthcare information, retirement plan information, names and other identifying details for spouses and dependents, personal