The EEOC’s Latest Investigative Tactic: Trolling for Evidence Through Employee Email Blasts

by Snell & Wilmer

In an unprecedented move, the United States Equal Employment Opportunity Commission (“EEOC”) recently dispatched 1,330 emails to the work and personal email addresses of  current and former employees and managers of Case New Holland, Inc. and CNH America, LLC (collectively, “CNH”), asking if such individuals would assist the EEOC in their “official investigation” of CNH’s “alleged” discriminatory conduct. The June 5, 2013 email blast was targeted at more than 300 current and former members of CNH management, whose responses potentially could be claimed by the EEOC as admissions by the company itself. 

The EEOC sent this email blast, without the knowledge or consent of CNH, to CNH’s employees. When CNH questioned the EEOC’s legal authority to use CNH’s computer and email databases to contact its employees and managers, senior EEOC officials responded that the agency reserved the right to undertake yet another mass email blast. The EEOC also refused CNH’s request to withhold distribution of employees’ responses from third parties.

This investigative tactic was fueled by the EEOC’s receipt of 1,330 work and personal email addresses from human resources files that CNH voluntarily provided the agency in January 2012. CNH provided the files in response to the EEOC’s request for information or documents accompanying a letter that announced that the agency was pursuing a nationwide investigation of CNH under the Age Discrimination in Employment Act (“ADEA”).  CNH chose to voluntarily provide the requested documents, producing over 600 megabytes of information. A year and a half later, having heard nothing further regarding the EEOC’s previous ADEA investigation, CNH employees and managers received the email blast.

CNH filed a lawsuit against the EEOC and its lead investigator on August 1, 2013, claiming that the defendants violated the federal Administrative Procedure Act and the constitutional rights of CNH under both the Fourth Amendment search and seizure clause and the Fifth Amendment takings clause for the agency’s unauthorized use of CNH’s computer data and its unannounced, ex parte investigative communications with the company’s management.

The EEOC does not have unlimited authority to investigate employers for alleged violations of federal anti-discrimination laws. Rather, the scope of their investigative authority is tied to the charge of discrimination or, in instances such as the ADEA investigation, to the confines of the directed charge. If CNH declined the EEOC’s request for documents, the EEOC would have had to issue an administrative subpoena to obtain the records from CNH’s computer and email systems.  At that point, CNH would have had to determine whether it wanted to file a petition to revoke, or produce the information. The lesson is that employers need not always ask “how high?” merely because the EEOC tells them to jump. 

Each case is different, and companies should never assume that all such situations require identical responses. The attorneys at Snell & Wilmer continue to closely monitor the CNH litigation and similar lawsuits and challenges to EEOC inquiries and requests for information and documents.

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.

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