In EEOC v. Vicksburg Healthcare, LLC, No. 13-CV-895 (S.D. Miss. Apr. 22, 2015), Magistrate Judge Michael T. Parker of the U.S. District Court for the Southern District of Mississippi denied the EEOC’s request to be allowed to inspect and observe the defendant’s facility in an Americans With Disabilities Act (“ADA”) action. As we have reported previously here, the EEOC has recently attempted to obtain discovery by invasive inspections of employers’ premises. Magistrate Judge Parker’s decision to deny the EEOC this access represents another setback for the EEOC as it ratchets up the intensity of its discovery efforts in workplace litigation. It also gives employers a case they can use when the EEOC or other workplace plaintiffs seek intrusive inspections.

Factual Background

The EEOC filed suit against Vicksburg Healthcare, LLC d/b/a River Region Medical Center (“River Region”), claiming that River Region terminated Beatrice Chambers because of a disability in violation of the ADA. Vicksburg Healthcare, 13-CV-895, at 3. Specifically, the EEOC claimed that Chambers could perform the essential functions of a Licensed Practical Nurse (“LPN”) despite the fact that, because of shoulder surgery, Chambers was unable to lift ten or more pounds.

During the course of the litigation, the EEOC served a request for entry onto River Region’s premises for three hours so that it could observe the work of LPNs, inspect the type of equipment in use at River Region, and collect measurements about the amount of force required to push and pull certain equipment. Id. at 3-4. In addition, the EEOC sought to interview River Region’s employees during the inspection. Id. at 6. River Region objected that the request was overly broad and intrusive, would reveal information protected by the physician-patient privilege and HIPPA, and would allow the EEOC to obtain statements from River Region’s employees without the protections in the Federal Rules for deposing witnesses. Id. at 4. Subsequently, the EEOC moved to compel River Region to allow the inspection. Id. at 4-5.

The Court’s Ruling

The Court began by noting that the EEOC did not identify any specific equipment that it wished to observe or measure. Id. at 6. The Court pointed out that this was problematic because a three-hour inspection would not reliably establish which tasks LPNs regularly performed or which equipment they regularly used given that the tasks LPNs performed were “not necessarily performed on any given day.” Id. at 6-7.

The Court reasoned that “the amount of force required to push, pull, and/or lift equipment such as gurneys, beds, and wheelchairs [would] depend on the weight of the patient in the gurney, bed, or wheelchair,” and that it was therefore not clear whether a three-hour inspection “would allow [the EEOC] to observe a representative sample of patients or duties.” Id. at 7. It thus found that the requested inspection “would likely be of limited use.” Id.

The Court further determined that the “possible disruption of patient care and the risk of compromising patients’ rights to confidentiality [were] significant concerns” that weighed against allowing the inspection. Id. at 8. With respect to disruption of patient care, the Court found that, because the EEOC would be testing equipment while the equipment was being used to treat patients, and because “River Region personnel would be subject to roving depositions while they attempt to perform their duties,” the proposed EEOC inspection would likely “significantly disrupt” River Region’s operations. Id.

With respect to confidentiality, the Court opined that the EEOC could receive confidential patient information as the result of the inspection. While the EEOC stated that it would not communicate with any patient or review medical records, the Court found that the “normal” operations of River Region “would likely include the communication or observation of patients’ confidential information.” Id.

Based on the foregoing, the Court concluded that it would not permit the requested inspection. Id. at 9. It further found that the EEOC could try to obtain the information it desired through other means, such as interviews of Chambers and depositions.

Implications For Employers

Employers who are the subject of discrimination litigation or an EEOC investigation can use this case for authority if the plaintiff or the EEOC seeks to investigate their premises. While the case will be especially useful for employers in the healthcare industry (given the Court’s concerns over patient confidentiality), other portions of the decision will be of use to employers in other industries. The Court’s concern that a time limited inspection might not allow an inspecting party to observe a “representative sample” of a position’s job duties would apply in many other industries, and the Court’s conclusion that an inspecting party could obtain information about essential job duties through other, less invasive means of discovery would apply in most, if not all, other industries. Employers should also take heart that the courts are becoming increasingly wary of the EEOC’s attempts to conduct invasive premises inspections.