The EEOC routinely claims that its subpoena power is extremely broad and vigorously resists any attempt to reign in that power. Some Courts share that belief, and have allowed the EEOC to cast a broad net for information, even when the charge allegations that the government is investigating are narrow. Our previous posts have noted that trend.
In EEOC v. Loyola University Medical Center, Case No. 11-CV-4456 (N.D. Ill. Oct. 13, 2011), however, Judge Charles Kocoras of the U.S. District Court for the Northern District of Illinois took a hard line with the EEOC, limiting the amount of information it could obtain via a subpoena stemming from an administrative investigation. The ruling is well worth a read by corporate counsel and HR professionals who deal with EEOC investigations.
The charging party in the EEOC v. Loyola case alleged that Loyola discriminated against her based on disability when it required her to submit to a fitness for duty examination ("FDE") consisting of a blood test, a breath alcohol test, and a medical exam. The EEOC sent Loyola a request for information as part of its administrative investigation, asking Loyola to divulge information relative to other employees who were ordered to take FDEs and the results and reasons for those examinations. Loyola partially responded to that request, noting that only one employee had been required to submit to an FDE for the supervisors specified by the EEOC’s information request. Not content with that answer, the EEOC issued a subpoena, expanding its demand for information to all employees subjected to an FDE during the relevant time period, and in so doing sought very sensitive details of those examinations.
Applicable EEOC regulations - 29 C.F.R. Sec. 1601.16 - require an employer to assert any objections to a subpoena within five (5) days. Loyola did not do so. Almost a month after the EEOC served its subpoena, Loyola wrote a letter to the government saying that it could not provide the requested information because it would violate federal and state medical confidentiality laws. Loyola did not file a petition to revoke the subpoena before sending its letter. The EEOC later filed a subpoena enforcement action, and the matter was assigned to Judge Kocoras.This case involved some thorny procedural and substantive issues. The first item the Court tackled was a procedural issue that has historically worked against employers when addressing a subpoena. An employer seeking to revoke or modify a subpoena must do so within five days of its receipt. This is an extremely tight deadline for unwary employers, and missing this procedural step arguably waives all of a company’s objections - and the EEOC always argues waiver when an employer does not assert objections within the five day period. In this case, Loyola did not respond to the EEOC until weeks after the fact, nor did it actually file a petition, but instead sent only a letter to the EEOC. The EEOC claimed that Loyola’s procedural miscues meant that it waived any objections to the subpoena. Loyola responded with the argument that only patients can waive their confidentiality rights, regardless of the EEOC’s procedural arguments. The Court sided with Loyola, noting that there is no Seventh Circuit opinion that has held that it was bound by the EEOC regulations to ignore the merits of a subpoena challenge, and thus held that it would not ignore Loyola’s arguments. Id. at 5-6.
Judge Kocoras then dug into the substance of Loyola’s argument by focusing on the relevance of the information the EEOC was seeking to the underlying charge. The Court recognized that the EEOC’s subpoena powers are broad, but not unlimited. Id. at 4. The Court reasoned that granting too much authority to the EEOC that the relevance requirement “becomes a nullity.” Id. at 6-7. The Court reasoned that this case focused on whether Loyola’s FDE was job related. The medical records of other employees, Judge Kocoras determined, “shed no light whatsoever” on whether the FDE in this matter was job related to the charging party’s position. Id. at 7. Even under a broad reading of the EEOC’s subpoena power, the subpoena remained unenforceable because it was “not sufficiently tailored to the particular circumstances of the investigation.” Id. at 8. The EEOC’s request for all employee medical data - when the charge related to only one employee - was just too broad. Interestingly, the Court came to that conclusion without even addressing the question of whether the information sought was protected by confidentiality laws. Id at 9.
The EEOC v. Loyola decision represents a small but increasingly important line of cases that have limited the EEOC’s authority to enforce overbroad subpoenas. That Judge Kocoras was willing to disregard the EEOC’s procedural regulations is also significant. The EEOC often cites to those regulations as controlling in all jurisdictions and forums, but as Judge Kocoras noted, there is no authority in the Seventh Circuit that prevented him from hearing the merits of the employer’s position, procedural challenges notwithstanding.