EEOC-Initiated Litigation - 2022 Edition

6 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP 4. Developments In Subpoena Enforcement Actions And EEOC Investigations The EEOC’s power to issue administrative subpoenas is one of the most powerful investigatory tools at its disposal. Typically, an investigator in pursuit of information, data, or documents from an employer will first make an informal request for information. If the employer does not produce the requested information, the District Director may issue an administrative subpoena to obtain the information. 21 Sometimes the EEOC will even skip the informal request and proceed directly to issuing a subpoena – a practice that is actually disallowed by the EEOC’s own internal guidance. 22 The EEOC argues that its subpoena power should be afforded significant deference. But subpoenas are often used by the EEOC as a means to expand a single allegation of discrimination into a massive pattern or practice or systemic case. Employers can and do push back on the scope of those subpoenas. However, recent court decisions continue to present challenges for employers that seek to do so. Employers who receive a subpoena must act quickly. The Commission’s regulations permit an employer to submit to the Commission a petition to revoke or modify the subpoena on the grounds that it seeks information that is not relevant to the charge, is overly burdensome, or suffers from some other flaw . 23 However, the petition must be filed within five business days of receipt of the subpoena, and the Commission and some courts have proven unsympathetic to employers who miss the cut-off. (Note that subpoenas issued in ADEA investigations are treated differently and petitions to revoke are not permitted under that statute. Subpoenas issued under the ADEA are elevated directly to the District Court.) If, after the petition is resolved, the investigator is not satisfied with the employer’s response to the subpoena, the EEOC may proceed to a District Court, where it will file an application for an order to show cause why the subpoena should not be enforced. The consequences for employers that do not promptly object to the EEOC’s expansive investigatory tactics can follow them long into a litigation. For example, in EEOC v. Scottsdale Healthcare Hospitals , 24 the U.S. District Court for the District of Arizona upheld the scope of the EEOC’s expansive document requests due to the employers’ failure to object to similar requests during the investigation phase. In that case, the charging party had filed a charge alleging that she and other aggrieved individuals had been discriminated against in violation of the ADA. 25 The EEOC conducted a 15-month investigation, after which it 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.” 26 Once in litigation, the employer resisted the EEOC’s discovery requests, arguing that they go 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. 27 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.” 28 To force the EEOC to bring a separate charge of discrimination for other claims of discrimination where evidence of those claims was uncovered during its reasonable investigation would be to elevate form over substance and waste administrative resources. 29 21 See 29 C.F.R. § 1601.16(a). 22 See EEOC Compliance Manual § 24. 23 See 29 C.F.R. § 1601.16(b)(1). 24 EEOC v. Scottsdale Healthcare Hospitals , No. 20-CV-08194-PHX-MTL, 2021 WL 4522284 (D. Ariz. Oct. 4, 2021). 25 Id . at *1. 26 Id . 27 Id . at *2. 28 Id . 29 Id .

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