Unannounced, FBI-like raids. Unauthorized and abusive search and seizure tactics. Illegal confiscation of files. Intimidation. And more… The EEOC has clearly turned up the heat in its investigation tactics. But at least one Judge has had enough.
In a scathing 37 page opinion issued in EEOC v. Homenurse, Inc., No. 13-CV-2927 (N.D. Ga. Sept. 30, 2013), Magistrate Judge Walter E. Johnson of the U.S. District Court for the Northern District of Georgia recites unreasonable and bad faith tactics the EEOC Atlanta District Office recently used in connection with its subpoenas to a small business. The Court refused to enforce the subpoena, finding that “[a]lthough the standards governing the enforcement of an administrative subpoena are low, the EEOC has not met them here.” Id. at 36.
Whether it be a workplace “raid” or, as we reported here, confiscatory conduct amounting to “hacking” an employer’s computer systems, the EEOC v. Homenurse case is the latest example of the EEOC’s alarming “office crashing” investigatory tactics. Most courts give wide latitude to the EEOC’s subpoena powers but there are important exceptions (read more here and here). Because the EEOC overstepped and misused its authority here, Judge Johnson did not hesitate to quash its subpoena. His Order is a good read for employers dealing with the EEOC.
The subpoena enforcement action arose out of the EEOC’s investigation of a charge alleging discrimination based on race, age, disability, and genetic information, as well as retaliation. According to the claimant, she was fired when she complained about her employer’s allegedly discriminatory pre-hire screening practices. Id. at 2. According to the employer, the claimant was fired because she posted confidential patient information on her Facebook page. Id. at 5.
Claimant’s charge alleged class-wide discrimination by the employer against individuals with disabilities, individuals 40 and over, individuals with pre-existing genetic conditions, and African-Americans. The Claimant, however, did not fall within any of these protected categories. Id. at 5. In particular, “[i]t [was] undisputed that [the claimant] is not disabled, is under age forty, has no pre-existing genetic conditions, and is Caucasian.” Id. at 3.
Instead of seeking information by way of requests for information, the EEOC launched its charge investigation by “conducting a raid on [the employer’s] office ‘as if it were the FBI executing a criminal search warrant.’” Id. at 3. According to the employer, the EEOC “showed up unannounced [at the employer’s workplace] with subpoenas in hand, intimidated the staff of [the employer’s] small office, and began rifling through [the employer’s] confidential personnel and patient files” and allegedly confiscated certain documents. Id. at 4.
Over the next year and a half, the EEOC continued to pursue tactics that the Court held “constitute[d] a misuse of [the EEOC’s] authority” including: “failure to follow its own regulations, its foot-dragging, its errors in communication which caused unnecessary expense for [the subpoenaed employer], its demand for access to documents already in its possession, and its dogged pursuit of an investigation where it had no aggrieved party… .” Id. at 36.
Further, the EEOC sought irrelevant, burdensome, and duplicative information, ignored the employer’s repeated requests to discuss the scope and relevance of the EEOC’s requests, and issued multiple subpoenas notwithstanding the employer’s ongoing cooperation. Id. at 6-11. Further, though the employer produced substantial responsive information and documents, the agency accused it of being obstructionist and blamed it for the agency’s own miscommunication. Id. at 12-20. The EEOC eventually filed an application for enforcement of its administrative subpoena. Id. at 20-22.
While Judge Johnson acknowledged that “[a] district court must enforce a subpoena if (1) the administrative investigation is within the agency’s authority, (2) the agency’s demand is not too indefinite or overly burdensome, and (3) the information sought is reasonably relevant,” he held the EEOC failed to meet its burden as to all three factors. Id. at 27. First, because the claimant did not belong to the protected categories implicated by the class allegations, the EEOC did not have any authority to “investigate a generalized charge of discrimination that is untethered to any aggrieved person.” Id. at 28. Second, noting the significant cost and disruption to the employer’s business to respond to the EEOC’s expansive requests, the Court held that the burden of complying with the subpoena would be disproportionate, especially given the size of the employer. Third, the Court held that the employer had already provided relevant information and additional documents and information that the EEOC sought to compel were irrelevant. Judge Johnson’s opinion on a whole, however, transcended the legal analysis, making it clear that at least in this courtroom, the EEOC’s strong-arm tactics would not be tolerated.
Implications For Employers
Ordinarily, courts give significant deference to the EEOC’s subpoena powers. However, employers caught in the crosshairs of the EEOC’s subpoena enforcement activity are not without recourse. Judge Johnson’s 37-page lashing of the EEOC’s arbitrary, stubborn, and litigious tactics is a reminder of two equally significant principles: (1) although the EEOC’s subpoena powers are broad, they are not without limit; and (2) federal courts are an important check on federal agencies, such as the EEOC. Employers should keep this decision in their back pocket as ammunition against a runaway EEOC investigation.
Readers can also find this post on our EEOC Countdown blog here.