EEOC Ordered To Produce Class Members For Deposition (Again)

by BakerHostetler

We’ve written in the past that the EEOC, at times, lives by the adage “don’t let the facts get in the way of a good story.”  A recent case demonstrates that the facts are, indeed, relevant and that the EEOC must permit the employer discovery to test the factual theories it presents in litigation.

In EEOC v. DHL Express (USA), Inc., Case No. 10C6139 (N.D. Ill. Oct. 31, 2012), the EEOC brought suit against carrier DHL, contending that it discriminated against a class of 94 African American dockworkers and drivers on the basis of their race. The EEOC contended in general that the workers were given “less desirable” assignments that were “more difficult” and “more dangerous” than those given to whites.  It also claimed that black drivers were assigned to “black neighborhoods” more frequently than whites.  Rather than produce evidence to support these claims, the EEOC provided unsworn “vignettes” about the situations it was claiming on behalf of the individual class members.

The employer took depositions of 34 of the 94 potential class members, but the EEOC refused to produce additional members for litigation, contending that the sampling of roughly one third of the class members was sufficient and citing the cost of further depositions.

The court was obviously unimpressed with the EEOC’s level of proof.  It noted that the unsworn “vignettes” were not evidence and, in fact, that the depositions of even the 34 members had proven them to be less than accurate.    It was also troubled by the generally vague allegations by the Commission and noted differences in testimony as to what constituted, for example, a “more dangerous assignment” or a “black neighborhood.”

The court similarly rejected numerical limits on the depositions, citing the Eighth Circuit’s similar rejection of limits in EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 670 (8th Cir. May 8, 2012) (ordering production of 270 claimants for deposition).  It directed the EEOC to produce all of the claimants to be deposed.

The DHL decision raises serious questions about the EEOC’s prosecution of its case, much as the court did in the CRST Van case in the Eighth Circuit.  One might wonder why the Commission refused to produce proof of evidentiary quality to begin with, and then to resist further depositions once the “vignettes” proved to be inaccurate.  Further, vague allegations such as “more difficult” or “black neighborhood” should have been fleshed out before the lawsuit was even filed.  If, in fact, the EEOC reasonably believed that the employer was somehow guilty of discrimination, it should have been able to articulate why and to produce at least some evidence that the class-wide allegations were true. 

The Bottom Line:  The EEOC must produce proof of evidentiary quality and likely must make its claimants available for deposition if it is going to claim class-wide discrimination.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:


BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.