Christina S. Capizzi

Christina S. Capizzi Partner

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Tenth Circuit Denies EEOC Attempt to Subpoena Pattern or Practice Evidence

Employers familiar with the time-consuming task of responding to broad requests for information from the Equal Employment Opportunity Commission (“EEOC”) will be pleased to learn the 10th Circuit Court of Appeals has found one such subpoena designed to identify a “pattern or practice of discrimination” to be overly broad and not relevant to the EEOC’s investigation into a single charge of disability and sex discrimination.  The EEOC’s subpoena power on this basis has been rejected by the 10th Circuit in a victory for employers in EEOC v. TriCore Reference Labs (No. 16-2053) and the standard for reviewing similar cases will soon be addressed by the United States Supreme Court in EEOC v. McLane Co., Inc. (No. 15-1248).

The EEOC’s broad requests for information and use of subpoena power have become more and more common over recent years as the EEOC has expanded its pursuit of systemic discrimination cases.  In these cases, the EEOC often uses a single charge of discrimination as a basis to gather extensive information concerning employer practices in an attempt to identify potential systemic discrimination cases based on a pattern or practice.

In TriCore Reference Labs, an employee sought accommodations for her rheumatoid arthritis, which was exacerbated by her pregnancy. Based on medical restrictions provided by her doctor and following several meetings with the employee, the employer determined she could not safely perform the essential functions of her position and offered her an opportunity to apply for other positions for which she was qualified.  The employee was terminated after she failed to apply for a different position.  The employee filed a charge of discrimination which led the EEOC to seek a complete list of employees who had requested accommodations for disabilities, and a complete list of employees who had been pregnant during employment and whether or not those employees sought or were granted any accommodations, for a period of four (4) years.

TriCore objected to the information requests and subpoena on the grounds that the requests were overly broad and the EEOC did not have an actionable claim of discrimination.  The EEOC sought enforcement of its subpoena from the U.S. District Court for the District of New Mexico where TriCore again argued the information requested was not relevant to the charge of discrimination.  The district court denied the application to enforce the subpoena on the grounds the requests would not provide evidence of relevant comparators, nor did case law support a subpoena to show a pattern or practice of discrimination.

On appeal, the 10th Circuit affirmed the denial, holding the EEOC’s subpoena power was not so broad as to allow the agency to expand its investigation from a single discriminatory act into a broader pattern or practice investigation.  The Court of Appeals also held the request seeking the identities of all employees who had been pregnant was overbroad, although it may have passed the test for relevancy.

While this victory for employers will not stop the EEOC from issuing broad requests for information, employers now have one more tool for fighting overly broad information requests.  Given the EEOC’s routine practice of seeking information related to comparable employees, employers should consult legal counsel to determine the best response to an overly broad information request.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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