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Judicial Support for the EEOC’s Broad Right to Investigate Companywide Policies

EEOC Investigations

A federal District Court in Tampa just issued an interesting opinion, underscoring the broad power of the EEOC to investigate companywide policies.  Business owners, take note.

The case’s fact-pattern is straightforward.  In 2012, Rose-Marie Porter applied for a job with KB Staffing, LLC, an agency that connects temps with companies needing temporary employment.  In order be considered for employment, KB Staffing insisted Ms. Porter complete a health questionnaire (“Does the applicant have cerebral palsy, cardiac issues, diabetes, etc.”).  Ms. Porter refused, and wasn’t hired.  She filed a Charge of Discrimination with the EEOC.

The EEOC served, on KB Staffing, a subpoena seeking a copy of health questionnaires for all applicants for the three year period preceding Ms. Porter’s Charge of Discrimination and health questionnaires for any and all current employees.  KB Staffing — which, at any point in time, temporarily employs 200 to 300 people — resisted the subpoena.

The EEOC applied to the Middle District of Florida for an order requiring KB Staffing to comply with the subpoena.  At a cursory glance, KB Staffing’s defenses formed a powerful narrative:

  • KB Staffing “no longer uses the health questionnaires as part of its business operation,” and hadn’t done so for more than a year.
  • Ms. Porter raised claims for her own individual situation; she wasn’t attempting to act on behalf of anyone else.  Under those circumstances, KB Staffing argued that courts should avoid “confer[ing] unconstrained investigative authority upon the EEOC.”
  • The EEOC requested three year’s worth of questionnaires, when “the statute of limitations has already run for claims of all applicants who filled out the questionnaire more than one year prior to the date of even the request for the documentation.”
  • Ms. Porter also sued KB Staffing over the incident.  And “Porter and KB Staffing agreed to amicably resolve Porter’s claim of discrimination . . . . Porter has withdrawn her EEOC Charge against KB Staffing.”

To summarize, KB Staffing argued that the subpoena greatly exceeded the scope of the charge; the deadline for many other applicants to pursue their own claims had expired; KB Staffing had discontinued use of the health questionnaire; and Ms. Porter and KB Staffing had privately resolved their dispute.  Does that seem reasonable enough?  Case closed?

Hardly.  In a Report & Recommendation adopted by the Court this past Tuesday, Magistrate Judge Anthony E. Porcelli began by noting that the Charge of Discrimination stated that “[t]he policy of asking medical history questions unrelated to the job, prior to any job offer, could affect numerous applicants.”  For this reason, the EEOC’s subpoena wasn’t excessive or overbroad; to the contrary, the EEOC was merely investigating the claims that the Charging Party raised.

Then, Magistrate Judge Porcelli delivered the knockout punch.

The EEOC maintains discretion to seek relief on behalf of an individual, such as the Charging Party, but, contrary to KB Staffing’s assertions, also maintains discretion to vindicate the public interest in combating systemic discrimination.  Accordingly, the claims that the EEOC may assert are not merely derivative of those asserted by a charging party.  See E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 297 (2002) (“Moreover, it simply does not follow from the cases holding that the employee’s conduct may affect the EEOC’s recovery that the EEOC’s claim is merely derivative.  We have recognized several situations in which the EEOC does not stand in the employee’s shoes.” (citations omitted)). . . .  Indeed, “it is crucial that the [EEOC]’s ability to investigate charges of systemic discrimination not be impaired.”  E.E.O.C. v. Shell Oil Co., 466 U.S. 54, 69 (1984).  As such, the EEOC maintains the authority to investigate whether KB Staffing engaged in systemic discrimination when it used a pre-offer health questionnaire during its application process, despite the victim-specific relief it could pursue on the Charging Party’s behalf and despite KB Staffing’s assertion that it ceased use of the health questionnaire as of December, 2012.

So whether or not a Charging Party asserts claims on behalf of herself or on behalf of a class, and whether or not the discriminatory practice has ended, the EEOC is authorized to investigate systemic discrimination “to vindicate the public interest.”  Thus, the Court found the subpoena appropriate, and ordered KB Staffing to produce the requested documents within 30 days of Tuesday’s Order.

The lesson here: The EEOC has powerful tools at its disposal when it investigates discrimination.  But the agency’s authority in this area isn’t unlimited, and some other federal cases have criticized the EEOC’s investigatory tactics.1For instance, in EEOC v. Homenurse, Inc., the Court criticized the EEOC’s “highly inappropriate search and seizure operation, its failure to follow its own regulations, its foot-dragging, its errors in communication which caused unnecessary expense for HNI, its demand for access to documents already in its possession, and its dogged pursuit of an investigation where it had no aggrieved person.”  Ultimately, the Court concluded that “[a]lthough the standards governing enforcement of an administrative subpoena are low, the EEOC has not met them here.”  With good guidance, careful analysis, and quick action, a business may be able to effectively respond to an administrative subpoena.

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