Tenth Circuit Rejects EEOC's Overreaching ADA Pattern Or Practice Subpoena
By Christopher DeGroff and Matthew Gagnon
Rulings over EEOC administrative enforcement subpoenas are increasing. It’s a manifestation of the EEOC's aggressive strategy in expanding systemic investigations, and of employers resisting those efforts.
On February 27, the U.S. Court of Appeals for the Tenth Circuit upheld a District Court’s refusal to enforce an overly broad administrative subpoena issued by the EEOC. EEOC v. Burlington N. Santa Fe Ry. Co., Case No. 11-1121 (10th Cir. Feb. 27, 2012). The case involved two charges asserting Americans With Disabilities Act ("ADA") claims by individuals in Colorado against Burlington Northern Santa Fe Railway Co. (“BNSF”) after they were rejected for employment based on a medical examination. Id. at 2.
The EEOC v. Burlington N. Santa Fe Ry. Co. ruling is noteworthy for its rejection of the EEOC's strategy.
On February 2, 2009, the EEOC sent a request for information to BNSF for “any computerized or machine-readable files . . . created or maintained by you . . . during the period December 1, 2006 through the present that contain electronic data about or effecting current and/or former employees . . . throughout the United States.” Id. at 2-3. BNSF challenged the scope of the documents requested by the EEOC, and sought documentation from the EEOC to support the EEOC’s investigation beyond the incidents involving the two individuals who filed the ADA charges. Id. at 3. Instead of providing that information, the EEOC instead served a subpoena on BNSF demanding the information requested in the letter. BNSF contested the subpoena and refused to comply with it. Id. The EEOC then applied to the District Court to enforce the subpoena. The Tenth Circuit refused to do so. Id. at 3-4.
The Tenth Circuit’s Decision
The Tenth Circuit held that the District Court did not abuse its discretion in refusing to enforce the EEOC's subpoena. The statute that grants the EEOC the authority to issue administrative subpoenas states that the EEOC may access “any evidence of any person being investigated” so long as that evidence “relates to unlawful employment practices . . . and is relevant to the charge under investigation.” Id. at 5 (quoting 42 U.S.C. § 2000e-8(a)). Although the Court noted that the relevancy requirement was not particularly restrictive, it upheld the District Court’s determination that the subpoena was not relevant to the two charges pending against BNSF. Id. at 5.
The EEOC pointed to four other complaints filed against BNSF in other states making similar allegations of discrimination, and argued that it was entitled to nationwide discovery because it was investigating a pattern or practice of discrimination carried out on a nationwide basis. Id. at 4-5. The Tenth Circuit rejected the EEOC's argument by noting that there was no reference to any of the four additional charges in the EEOC’s subpoena. Id. at 6. The cover letter to the subpoena only stated that the requested information was related to pattern or practice discrimination, and that the EEOC was broadening its investigation “under the authority granted by the statute.” Id. The Tenth Circuit held that this statement “does not identify the statute to which it refers, it does not constitute a ‘charge’ of discrimination, and it conveys no basis for expanding the investigation.” Id. Accordingly, the only charges under investigation were those filed by the two individuals, and the EEOC only had power to issue a subpoena for information relevant to those charges. The Tenth Circuit concluded that nationwide record-keeping data was not relevant to individual charges of discrimination filed by two men who applied for the same type of job in the same state. Id. at 9-10.
The Tenth Circuit also rejected the EEOC’s attempts to justify the breadth of its request. The EEOC had contended that the two charges of discrimination would be a part of any pattern or practice of disability discrimination at BNSF, if such a pattern or practice existed. Id. at 7. The Tenth Circuit reasoned that this threatened to undermine the relevancy requirement of the EEOC’s subpoena power, since any act of discrimination could always be a part of a pattern or practice of discrimination. Id. Critically, the Tenth Circuit opined that not every charge of discrimination warrants a pattern or practice investigation. Id.
Key Observations In The Ruling
The Tenth Circuit made two observations of special interest to employers that frequently deal with the EEOC.
First, it noted that BNSF was likely aware of the other charges that had been filed against it because the EEOC is required to send an employer notice of any such charge within ten days of receiving it. Id. at 6 n.2. However, this could not excuse the EEOC’s refusal to inform BNSF of which other charges the EEOC was considering as additional support for a nationwide investigation. Id.
Second, the Tenth Circuit distinguished a Seventh Circuit case - EEOC v. Konica Minolta Bus. Solutions U.S.A., Inc., 639 F.3d 366 (7th Cir. 2011) - on the basis that disability discrimination is different from racial discrimination. In that case, the Seventh Circuit upheld an EEOC subpoena based on an individual allegation of racial discrimination. The Tenth Circuit reasoned that racial discrimination is by definition class discrimination; although it may have been appropriate to allow such an investigation based on one complaint of racial discrimination, the same could not be said of individual complaints of disability discrimination. Id. at 9.
Key Take-Aways For Employers
Employers should expect that the EEOC will take the dicta about the distinction between race and ADA charges as a way to cabin the Tenth Circuit's reasoning. Nonetheless, the ruling in EEOC v. BNSF is a handy piece of ammunition for employers facing broad information requests in investigation of ADA claims.