EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 59 restrictions for the worker, job titles where individual was referred and referral dates, the company to which individual was referred, start date of employment, end date of employment, reasons for termination of employment, dates individual was interviewed by KSI and the reasons for the interviews, results of the interviews, description of and dates of other steps taken in referring or hiring individual, results of the other steps, description of training given by Defendant to individual and dates of training, results of training, training by referral employer and dates of training if known, and results of training by referral employer if known. Id . at *2-4. For these reasons, the Court granted in part the EEOC’s motion to compel the administrative subpoena. EEOC v. Yale New Haven Hospitals, Inc. , No. 20-CV-00187, 2021 WL 2661638 (D. Conn. June 29, 2021). The EEOC filed an enforcement action alleging that Defendant’s “Late Career Practitioner Policy” - requiring neurophysiological and ophthalmologic examinations - was discriminatory and therefore violated the Americans With Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). Id . at 1. During discovery, the EEOC filed a motion to compel production of two sets of documents, including peer review and credentials filed for practitioners subject to the policy and the examinations used to examine the practitioners. Defendant argued that because the EEOC was only objecting to the policy, and not discrimination against any practitioners, the value of the production of the entire peer review files that might contain confidential information was minimal. Defendant further contended that the requests were overly broad and invasive. The EEOC asserted that the files it requested were highly relevant because Defendant must justify why it used an age-proxy and whether another selection criteria for identifying poor performing practitioners could be used unrelated to age. The Court agreed with the EEOC. The Court ruled that the EEOC was entitled to review the records to see if the policy was necessary, and any confidentiality concerns could be addressed though proper maintenance of confidentiality designations. The Court noted that there were only 115 files, which was not overly burdensome. The Court also determined that Defendant must produce the requested tests, including the administrator’s documents, raw data, versions of tests used under the policy, and the administrator’s notes. For these reasons, the Court granted the EEOC’s motion to compel production of documents. EEOC v. Scottsdale Healthcare Hospitals , No. 20-CV-08194, 2021 WL 4522284 (D. Ariz. Oct. 4, 2021). The EEOC conducted a 15-month investigation in a charge alleging that charging party and other aggrieved individuals had been discriminated against in violation of the ADA. Id. at *1. The EEOC concluded that there was reasonable cause to believe that the employer had discriminated against the charging party and other aggrieved individuals by “implementing a policy and/or practice of requiring individuals with disabilities to compete for open positions when returning from medical leave rather than providing reasonable accommodations including reassignment.” Id. Once in litigation, the employer resisted the EEOC’s discovery requests, arguing that they went beyond the charge, which was limited to individuals who took a leave of absence, were required to compete for a job upon returning, and were terminated rather than reassigned. Id. at *2. The Court disagreed, holding that “even if certain claims in the Complaint do exceed the scope of Carter's initial Charge, discovery relevant to such claims may yet be obtained if the claims arose out of EEOC's reasonable investigation of that Charge and are encompassed within its letter of determination.” Id. The Court also noted that the EEOC’s investigation had provided notice of the breadth of the EEOC’s claims, and the employer had responded to those requests: “[Employer’s] argument that it lacked sufficient notice of the extent of EEOC's claims is therefore unpersuasive, given that [employer] itself provided the EEOC with information that gave rise to the challenged allegations in the Complaint.” Id. at *3. The Court explained that the employer should have challenged the scope of the EEOC’s information requests during the investigation: “Had [employer] ‘believed that the EEOC's investigation exceeded the permissible statutory scope, it could have refused the EEOC's demand for access and sought adjudication of its rights.’” Id. (internal citations omitted). For these reasons, the Court ordered the employer to respond to the discovery requests at issue. EEOC v. Stanley Black & Decker, Inc. , No. 19-CV-2599, 2021 WL 1985017 (D. Md. May 17, 2021). The EEOC filed a subpoena enforcement action seeking terminated employee severance agreements in connection with its investigation into Defendant’s alleged violations of the Age Discrimination in Employment Act (“ADEA”). The underlying investigation related to an employee who alleged that he was terminated, but did not sign Defendant’s severance agreement that included a clause giving up rights to file a charge of discrimination with the EEOC in exchange for severance pay. The employee later filed a