By Gerald L. Maatman, Jr. and Christopher J. DeGroff
After a year that saw the EEOC filing a record number of subpoena enforcement actions, employers now also face a disturbing trend of courts taking a broad view of the EEOC’s subpoena power. This trend continues in EEOC v. Konica Minolta Business Solutions USA., Inc., No. 10-1239 (7th Cir. April 29, 2011), a ruling of this past week.
EEOC v. Konica presents a familiar scenario: a single charging party – Elliot Thompson – claims he was terminated because he was African American. In the early stages of the EEOC’s investigation, it learned that the only African-American employees in the company ultimately landed in Konica’s Tinley Park office. Suspecting illegal steering, the EEOC sent Konica a broad request for information seeking information about the company’s hiring practices. Konica objected, and argued, among other things, that the request was over broad because its hiring practices had nothing to do with Thompson’s termination claim. The EEOC subsequently issued a subpoena for that information, and when Konica still refused to comply, the Commission filed an enforcement action before Judge Blanche Manning in the U.S. District Court for the Northern District of Illinois. Judge Manning upheld the subpoena, and Konica appealed.
The Seventh Circuit observed that the EEOC’s investigative authority is limited to evidence “relevant to the charge under investigation,” but that the relevance standard is not particularly onerous, and could include “virtually any material that might cast light on the allegations against the employer.” The Seventh Circuit likened the standard to that of discovery in federal litigation, particularly Rule 26 of the Federal Rules of Civil Procedure. The Seventh Circuit took the somewhat significant leap to say that race discrimination claims like those in Thompson’s charge were “by definition class discrimination” claims, and information as to potential discrimination in hiring may cast light on individual race allegations. Thus, the Seventh Circuit held, the EEOC had a “realistic expectation rather than an idle hope” that hiring materials would illuminate the circumstances surrounding Thompson’s charge.
Konica made the additional argument that it would be unreasonably burdensome and expensive to comply with the subpoena. The Seventh Circuit recognized that this argument may have some applicability in these types of cases, but noted that the company did not give anything more than a conclusory statement concerning the burden. The Seventh Circuit, therefore, rejected Konica’s burden argument.
EEOC v. Konica is troubling in its expansive view of the EEOC’s ability to explore beyond the four corners of the charge for evidence of illegal employment practices. The ruling highlights yet again that relevance is an increasingly difficult argument to raise in the face of a government subpoena. Additionally, a request for information may still be challenged as over burdensome, but that claim must be backed with hard and compelling data, not conclusory statements.
A final takeaway from EEOC v. Konica may not be so favorable for the EEOC, however. It appears that Konica’s subpoena woes were originally triggered by the fact that it was perhaps too cooperative in the early stages of the investigation. The EEOC’s underlying steering theory relied on by the Seventh Circuit was first developed through Konica’s voluntary disclosure of data. Cases like EEOC v. Konica may have the unintended effect of suggesting to employers that they should closely scrutinize each information request asserted by the EEOC, and limiting responses to the bare minimum lest the EEOC use that cooperation against the employer in later stages of the administrative investigation.