EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 11 These employer wins build on some appellate court cases from recent years more favorable to employers, although those decisions were handed down before the Supreme Court decided McLane . 69 Employers have also sometimes been successful in challenging how the EEOC is permitted to conduct the investigation itself, and how employers may be able to fight back. For example, in EEOC v. Chipotle Mexican Grill, Inc. , 70 the U.S. District Court for the Northern District of California held that the facts underlying the EEOC’s reasonable cause determination were protected by the deliberative process privilege. In that case, a former employee filed a charge against his employer, alleging that he was subjected to sexual harassment, retaliation, and constructive termination. 71 The deliberative process privilege shields from disclosure intra-governmental communications relating to matters of law or policy. 72 The privilege is intended to protect the quality of governmental decision-making by “maintaining the confidentiality of advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated. ” 73 However, to be covered by the deliberative process privilege, information must be both “predecisional,” in that it is “antecedent to the adoption of agency policy,” and “deliberative,” meaning that it must actually be related to the process by which policies are formulated . 74 The Court held that the deliberative process privilege protected the information sought by defendant regarding the EEOC’s reasonable cause determination . 75 According to the District Court, revealing the facts which constituted the factual basis of the EEOC’s probable cause finding would reveal the EEOC’s evaluation and analysis of factual information gathered by the agency, which would “provide defendants unwarranted insight into how these facts played into the EEOC’s decision-making process.” 76 For several years now, a trend has been developing towards ever-greater discretion regarding the scope and reach of the subpoena power placed in the hands of the EEOC. If the law continues to develop in this way, it is likely that the EEOC will get more creative and assertive in terms of the types and amount of information it seeks, and the methods it uses to try to collect that information from employers. 77 email addresses, copies of social security cards, and tax information beyond earnings and salary); EEOC v. G4S Secure Solutions (USA), Inc. , No. 18-CV-2335, 2018 U.S. Dist. LEXIS 203540, at *10 (S.D. Cal. Nov. 29, 2018) (holding that “[w]hile inquiring with other employees or former employees regarding harassment and discrimination may be important to the EEOC investigation, there is no reason that the discharged employees are relevant to the investigation, further, there is no showing that other employees (past or present) are unavailable for interview for the same purposes.”). 69 See, e.g., EEOC v. Royal Caribbean Cruises, Ltd ., 771 F.3d 757, 760 (11th Cir. 2014) (holding that the EEOC’s subpoena power should not be construed “so broadly that the relevancy requirement is rendered a nullity”); EEOC v. TriCore Reference Laboratories , 849 F.3d 929, 935-38 (10th Cir. 2017) (rejecting the EEOC’s attempt to expand the scope of its investigation to include a “[f]ailure to accommodate persons with disabilities and/or failure to accommodate women with disabilities (due to pregnancy),” explaining that the EEOC had not justified its expanded investigation because it had “not alleged anything to suggest a pattern or practice of discrimination beyond [employer’s] failure to reassign [the employee]”) 70 EEOC v. Chipotle Mexican Grill, Inc. , No. 17-CV-5382, 2019 WL 3811890 (N.D. Cal. Aug. 1, 2019). 71 Chipotle Mexican Grill, Inc. , 2019 WL 3811890, at *1. The parties agreed that they would exchange written responses to each other’s 30(b)(6) deposition notices instead of producing witnesses to testify in person. Id. The employer sought written responses to five topics that inquired into the basis of the EEOC’s determination that there was reasonable cause to believe that the employer violated Title VII. Id. The EEOC did not substantively respond to those topics, arguing that the substance of its pre-suit investigation is not judicially reviewable, therefore not relevant to the lawsuit, and moreover that the information was protected by the deliberative process privilege. Id. at *2. 72 Id. at *3. 73 Id. (quoting National Wildlife Federation v. U.S. Forest Service , 861 F.2d 1114, 1117 (9th Cir. 1988)). 74 Id. (quoting National Wildlife Federation , 861 F.2d at 1117). 75 Id. 76 Id. Moreover, the District Court found that the employer had not demonstrated its need for the materials, and the need for accurate fact-finding, overrode the EEOC’s interest in non-disclosure. Id. at *4. 77 See, e.g., EEOC v. Nucor Steel Gallatin, Inc ., 184 F. Supp. 3d 561, 568 (E.D. Ky. 2016) (allowed the EEOC to conduct a warrantless, non-consensual search of private commercial property of an employer charged with hiring discrimination, explained, that “[j]ust as the warrant process requires courts to identify specific evidence of an existing violation and order only those inspections that bear ‘an appropriate relationship to the violation, the Commission’s statutory and regulatory schemes permit only those inspections that are ‘relevant to the charges filed’ and ‘not unduly burdensome’”); EEOC v. Homenurse, Inc. , No. 1:13-CV- 2927, 2013 U.S. Dist. LEXIS 147686, at *44 (N.D. Ga. Sept. 30, 2013) (calling the EEOC’s unannounced, FBI-like raid, in which it showed up at the former employer and confiscated some of the company’s files, many of which contained information protected by HIPAA, “highly inappropriate”).