EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 9 Joon, LLC , 49 where the District Court for the Middle District of Alabama held – quoting the Supreme Court’s decision in McLane Co. – that “it is the job of the EEOC, not this court in a subpoena enforcement proceeding, to investigate the charge’s allegations and ‘determine whether there is reasonable cause to believe that the charge is true.’ ” 50 The particular statue sued under can also play a role in determining the permissible breadth of an EEOC subpoena. For example, in EEOC v. Stanley Black & Decker, Inc. , 51 the charging party alleged that he was discriminated against and terminated due to his race because his employer would only provide severance pay under an agreement that required him to waive his right to file an EEOC charge. 52 The EEOC’s investigation included a request that the employer “identify any other employees who had been provided similar releases, copies of the releases, and additional information regarding those employees, including their names, positions, work locations, dates of hire and termination, contact information, and whether they signed the release.” 53 The court held that the subpoena “seeks information related an investigation plausibly within its delegated powers and thus is not unenforceable for lack of authority.” 54 In coming to that conclusion, the court first explained the different scope of authority available to the EEOC when proceeding under the ADEA rather than Title VII. Under Title VII, “the EEOC is entitled to seek documentary evidence that ‘is relevant to the charge under investigation.’” 55 But, the court explained, “[t]he EEOC's authority pursuant to the ADEA . . . contains no charge-based relevancy requirement; the agency may conduct investigations into potential ADEA violations at its discretion and may seek records ‘relating to any matter under investigation.’” 56 Because the EEOC came to believe, over the course of its investigation of the charging party’s charge, that the employer “may have a systemic policy of using the releases at issue to deter its employees from filing charges of discrimination and cooperating in EEOC investigations,” the court held that it was within its authority to investigate and subpoena information relating to its broadened investigation. 57 The employer also argued that the EEOC’s investigation of a “facial retaliation” claim was not an arguable or plausible unlawful employment practice in the Fourth Circuit. But the court held that the EEOC was not required to show a viable cause of action or remedy at the subpoena enforcement stage. Because there was no binding precedent that would foreclose the claim under investigation, the court held that EEOC had met its burden to establish that the information it sought was at least “speculatively related” to its authority to investigate potential ADEA violations. 58 F. App’x. at 478. The Ninth Circuit reversed the District Court’s conclusions regarding the burden of production as well, holding that a cost of approximately $11,000 to investigate systemic and unlawful discrimination should not unduly burden a company that has approximately 2,500 employees. Id. 49 EEOC v. Joon, LLC , No. 3:18-MC-3836, 2019 WL 2134596 (M.D. Ala. May 15, 2019). 50 Id. (quoting McLane Co. v. EEOC , 137 S. Ct. 1159, 1164 (2017)). See also EEOC v. United Parcel Service, Inc. , 859 F.3d 375, 379 (6th Cir. 2017) (holding that “the EEOC is entitled to evidence that shows a pattern of discrimination other than the specific instance of discrimination described in the charge.”); EEOC v. Union Pac. R.R. Co. , 867 F.3d 843, 852 (7th Cir. 2017), reh’g denied (Nov. 21, 2017) (rejecting the view that the EEOC’s request should have been denied because “the information sought extends beyond the allegations in the underlying charges”); EEOC v. Aerotek, Inc. , 815 F.3d 328, 332-33 (7th Cir. 2016) (upholding the District Court’s order requiring Aerotek to produce the names of more than 22,000 clients, holding that the EEOC had the power to investigate additional potential discriminatory requests) (citing EEOC v. Sidley Austin Brown & Wood , 315 F.3d 696, 701 (7th Cir. 2002)); EEOC v. Maritime Autowash, Inc., 820 F.3d 662, 666 (4th Cir. 2016) (enforcing an EEOC subpoena for documents stemming from the discrimination charge of an undocumented worker even though the charging party might not have been able to enforce any legal remedies, explaining that “[t]he [judicial review] process is not one for a determination of the underlying claim on its merits . . . courts should look only to the jurisdiction of the agency to conduct such an investigation”); EEOC v. KB Staffing, LLC , No. 14-MC-41, 2014 U.S. Dist. LEXIS 147810, at *10-11 (M.D. Fla. Aug. 28, 2014) (enforcing an EEOC subpoena for information regarding a pre-job offer health questionnaire allegedly violating the ADA even though the challenged practice had been discontinued years earlier, even beyond the statute of limitations period). 51 EEOC v. Stanley Black & Decker, Inc. , No. 19-CV-2599, 2021 WL 1985017 (D. Md. May 17, 2021). 52 Id. at *1. 53 Id. 54 Id. at *6. 55 Id. at *2 (quoting 42 U.S.C. § 2000e-8(a)). 56 Id. (quoting 29 U.S.C. § 626(a)). 57 Id. at *3. 58 Id. at *5.