Any employer that has gone through an Equal Employment Opportunity Commission (EEOC) investigation knows one thing is certain: you will have to provide mountains of documents. Normally, the EEOC will informally request documents, and the employer voluntarily complies. Other times, the EEOC will request too much information, and the employer refuses to comply. The EEOC may then issue an administrative subpoena to the employer. While the EEOC has broad subpoena powers to request documents in an investigation, the federal court of appeals for Oklahoma recently issued a powerful pro-employer opinion finding that this power is not unlimited.

The EEOC issues an overbroad subpoena

The EEOC began investigating TriCore Reference Laboratories after an employee filed a charge of discrimination alleging that TriCore failed to provide a reasonable accommodation because of her disability (rheumatoid arthritis) and her pregnancy. Due to her arthritis and pregnancy, the employee— a phlebotomist— provided doctors’ notes to her employer requesting that she sit for at least 75% of her shift and avoid exposure to infectious diseases. TriCore determined that she could not perform the essential functions of her job, but invited her to apply for other positions available within the company.

TriCore initially cooperated in the investigation, and things were proceeding smoothly with the investigating agency. That changed once the EEOC learned that TriCore required the employee to competitively apply for other positions, rather than assigning her to a vacant position. The EEOC considered that a violation of the Americans with Disabilities Act and sought to expand the scope of the investigation. Specifically, the EEOC issued a document subpoena requesting: (1) a complete list of TriCore employees in the past four years who had requested an accommodation for disability, along with their personal identifying information; and (2) a complete list of TriCore employees in the past four years who had been pregnant while employed at TriCore, including the employees’ personal identifying information and whether they sought or were granted any accommodations.

TriCore refused to provide that information, calling it a “fishing expedition.” More still, it was only successful in getting the EEOC to limit the scope of the subpoena to three years instead of four. In response, the EEOC filed an action in federal district court asking the court to enforce the original subpoena. The district court struck down the agency’s subpoena, reasoning that it was overbroad and sought information not relevant to the employee’s charge. The EEOC then appealed to the Tenth Circuit, hoping the appeals court would support its attempt to get more information from TriCore.

Appeals court rejects EEOC subpoena, too

Fortunately for employers, the Tenth Circuit agreed with the district court. The Tenth Circuit found that the EEOC’s request for the names of all employees who had requested an accommodation impermissibly broadened the investigation from one involving a single employee to a charge alleging a pattern or practice of discrimination. Consistent with previous cases, the appeals court ruled that there was no “link” from the employee’s sole complaint of discrimination to an alleged pattern of discrimination.

Moreover, the court ruled that the subpoena’s request for data regarding pregnant employees sought irrelevant information. For instance, the request sought contact information for pregnant employees who never requested any accommodation. The court’s ruling was also important because it established that the EEOC bears the burden of proving relevancy to the investigation of subpoenaed information.

The takeaway for employers

The TriCore case provides several useful guidelines and reminders to employers facing an ever- increasingly aggressive EEOC.

1. Comply in good faith and recognize their subpoena power is broad. The Tenth Circuit spent several pages explaining the scope of the EEOC’s subpoena power. It may be a costly and time-intensive process to provide information to the EEOC, but so long as the EEOC’s document requests are limited to the charging party’s claim and seek relevant information, employers should usually comply.
2. Don’t be afraid to object when necessary. No employer wants to get on an EEOC investigator’s bad side, but when the EEOC oversteps its bounds — such as trying to turn a single charge into, essentially, a class action case — employers must push back. This decision confirms that courts do place limits on the EEOC.
3. Carefully craft your position statement. The impetus for this case was that the employer provided information to the EEOC that the agency took as a clear violation of the law. This could have potentially been avoided (and the scope of the investigation limited) had the employer provided a more carefully crafted initial response. Thus, a best practice is to always have inside or outside counsel review any statements provided to the EEOC.
4. Stay tuned. The U.S. Supreme Court is set to hear another big case this year involving the standard courts should use in deciding to quash or enforce EEOC subpoenas. This may have potential ramifications for how aggressive the EEOC continues to be in investigations.

EEOC v. TriCore Reference Laboratories, No. 16 – 2053 (10th Cir. 2/27/17)