Many employers are familiar with the fact that the EEOC regularly conducts on-site workplace investigations after receiving charges of discrimination or harassment. A recent federal court decision, however, may lead to an uptick in such on-site investigations – even if the EEOC does not have an administrative warrant for the investigation and even if the employer does not consent.

A federal court in Kentucky recently held that the EEOC has the authority to conduct a warrantless, nonconsensual search of a private employer’s commercial property to investigate a discrimination claim. This marks the first decision in which a federal court confronted this issue. Though this is not a favorable decision for employers, the court delineated several limitations and safeguards that help fetter the EEOC’s on-site inspection authority.

Background:

In EEOC v. Nucor Steel Gallatin, Inc., an applicant claimed that the employer rescinded his job offer after it learned of his previous disability. After the employer provided the EEOC with a list of employees involved in recruiting and interviewing the applicant, the EEOC requested to conduct on-site interviews with individuals whom the EEOC believed would have additional information about the hiring decision. The employer refused (though it offered to produce the individuals for off-site interviews), and the EEOC subsequently issued a subpoena. The employer then refused to comply with the subpoena, at which point the EEOC went to the court to enforce it. The central issue before the court was whether the subpoena was enforceable in the absence of a valid administrative warrant or the company’s consent.

The EEOC Does Not Need an Administrative Warrant to Conduct An On-Site Investigation; An Equivalent is Sufficient

After quickly dismissing the notion that the EEOC does not have the statutory authority to perform onsite investigations, the court next knocked down the employer’s argument that the EEOC would need an administrative warrant to conduct any such an investigation.

Title VII, the court found, is the source of the EEOC’s investigative authority and states that the EEOC shall “have access to… any evidence of any person being investigated or proceeded against.” Though this language is broad, the Fourth Amendment prevents the EEOC from running roughshod over employers’ workplaces without restriction. The court found that Federal courts have interpreted the Fourth Amendment to permit federal agencies like the EEOC to obtain the procedural “equivalent” of a warrant so they could search an employer’s premises. An “equivalent” means that the enforcement procedures contained in the relevant statute or regulations provide sufficient safeguards roughly equivalent to those contained in traditional warrants.

The EEOC’s Inspection Subpoena Was the Procedural Equivalent of an Administrative Warrant and (Mostly) Enforceable

The court then held that the EEOC’s subpoena was equivalent to an administrative warrant here, because Title VII’s statutory and regularly scheme provided for the parties to resort to the court before proceeding with an inspection, and it further allowed a court to determine whether (1) the EEOC’s request for access flowed from “specific evidence of an existing violation” and (2) the investigator’s search bore “an appropriate relationship to the violation alleged in the complaint.”

It thereafter enforced the subpoena because it was (1) relevant to the specific charges filed, and (2) not unduly burdensome. More specifically, the court first found that an onsite visit to the employer’s workplace was relevant to the case because it would allow the EEOC to determine whether the individual would have been able to perform the essential job functions with or without accommodation. An on-site visit would allow the EEOC to determine the amount of time spent performing the function, the consequences of not requiring the function to be performed, and the work experience of individuals in similar jobs.

Second, the court held that enforcing the subpoena would not present an undue burden to the employer. The court rejected the employer’s argument that it would take the investigator too long to understand the essential functions of the shift manager position. More specifically, the employer failed to show how the mere presence of an inspector – regardless of how long he/she was on site for – would unduly burden its operations.

Importantly, however, the court found that the scope of the subpoena was overbroad. The subpoena allowed the EEOC investigator to “conduct witness interviews, examine the facility, and obtain/request any additional information as it pertains to the Rolling Shift Manager position….” The court held that the “examine the facility” component of the subpoena would allow the inspector to access areas of the employer’s workplace that had no relevance to the disability discrimination charge. Therefore, the court limited the scope of the inspection to only those areas that the investigator reasonably believed were directly relevant to the shift manager position.

Takeaways for Employers

While EEOC on-site investigations are nothing new to employers, this decision is troublesome for a couple of reasons. For one, it provides the EEOC with additional legal authority upon which to base an unconsented-to on-site investigation. Employers need to consider this the next time the EEOC shows up at their door. This ruling may also provide a framework for other courts to enforce EEOC subpoenas for unconsented-to on-site investigations.

That said, there are a few important points to keep in mind. First, this decision does not represent a consensus on the EEOC’s ability to conduct warrantless, nonconsensual searches. Indeed, the court acknowledged that no federal court had “fully explored” the issue. Because this issue has only been decided by one federal district court, it has limited precedential value.

Additionally, the court outlined limitations on the EEOC’s ability to use its subpoena power to conduct warrantless searches without the employer’s consent. If the employer contests the EEOC’s use of an investigative subpoena, the EEOC would first have to obtain enforcement authority from a federal district court. And as shown in this case, the district court could confine the scope of an on-site investigation to only those areas where the investigation is directly relevant to the issues in the charge.