Courts Reining in EEOC ‘Fishing Expeditions?’

by Doug Chartier

Federal appeals courts are weighing in on the enforceability of the Equal Employment Opportunity Commission’s broad requests for information — and whether it is overstepping its bounds when issuing them.

In a Feb. 27 opinion, the 10th Circuit Court of Appeals quashed an EEOC subpoena that sought additional information relating to a phlebotomist’s disability and pregnancy discrimination charge. The 10th Circuit, however, isn’t the only federal appeals court weighing employers’ pushback on the agency’s requests for information, as the 6th and 7th Circuits are each expected to hand down decisions in this area later this year. And the Supreme Court could conceivably step into the fray as well, judging from recent oral arguments in McLane v. EEOC. In short, employers could receive a wealth of new guidance this year in challenging EEOC subpoenas they deem irrelevant or unduly burdensome.

When the EEOC investigates a discrimination charge filed against an employer, it’s not uncommon for the agency to use its powers to expand the scope of the investigation, which then causes the employer’s time and cost in defending the charges to mushroom. While looking into an individual’s discrimination claim, the agency might try to probe for additional similar cases of alleged discrimination or show whether the claimed discrimination might be systemic throughout the organization.

This was apparently the dynamic in the 10th Circuit case of EEOC v. TriCore Reference Laboratories, where the EEOC, in investigating a worker’s Title VII sex and pregnancy discrimination and disability discrimination charge that her employer failed to accommodate her, asked the employer for information on all other similar accommodation requests. According to the EEOC, that broader information was related to the underlying charge.

To read this story and other complete articles featured in the March 13, 2017 print edition of Law Week Colorado, copies are available for purchase online.