It is a common occurrence when litigating against the EEOC to face controversies concerning the scope of discovery in administrative investigations. After all, discovery can help the EEOC put together the building blocks of its case. Increasingly, the Commission resorts to its subpoena power to launch broad-scale discovery in its administrative investigations. That is why defense counsel in EEOC v. Farmer’s Pride, Inc., 12-MC-148 (E.D. Pa. Oct 31, 2012), vehemently opposed the EEOC’s broad discovery requests and challenged the reach of the agency’s subpoena power.
In EEOC v. Farmer’s Pride, the EEOC’s subpoena sought two broad categories of documents from the Defendant. In a subsequent subpoena enforcement hearing, Judge R. Barclay Surrick, Jr. issued a mixed ruling that upheld the EEOC’s efforts to subpoena an array of information relating to formal or informal complaints of sexual harassment at the Defendant’s facility. As to the employee contact information that the EEOC requested, Judge Surrick issued a confidentiality order that protected the privacy interests of the Defendant’s employees and in no way interfered with the EEOC’s investigation. Judge Surrick also denied the EEOC’s request to put the cost of litigating the subpoena on the Defendant.
Although this decision is a mixed bag for employers, it provides some ammunition for employers to contain overboard EEOC demands, which is particularly important given the EEOC’s trend to greatly expand the scope of its investigations as part of its Systemic Initiative.
The EEOC’s investigation arose from a charge of discrimination filed by Christian Ramierez on June 20, 2011. Ramierez alleged that the Defendant discriminated against him on the basis of sex and retaliated against him in violation of Title VII. Specifically, he claimed that his female supervisor harassed him and that she also made comments of a sexual nature to other employees. Id. at 2. Ramierez also alleged that two male supervisors acted “inappropriately” towards women employees. Id.
During its investigation of Ramierez’s charge, the EEOC requested personnel information for all employees supervised by the alleged harassers. The EEOC also requested “[d]ocuments relating to any and all complaints of sexual harassment, whether made formally or informally, since January 2009.” Id. After the Defendant objected to the EEOC’s overbroad requests, the EEOC issued the Defendant a subpoena to produce the requested documents. Although the Defendant complied with some of the EEOC’s requests, the Commission filed an application that sought to enforce all aspects of its subpoena. The Defendant filed an answer to the application and three days later, both parties attended a hearing on the matter. Efforts to resolve the information request failed and the EEOC asked the Court to enter an order directing the Defendant to comply with the subpoena and grant the EEOC costs for enforcing the subpoena. Id. at 5.
The Court’s Ruling
The Court entered an order directing the Defendant to comply with the EEOC’s subpoena. Despite the Defendant’s contention that the EEOC’s request for documents relating to sexual harassment complaints filed at its facility were overbroad, the Court held that it would not limit the EEOC’s subpoena. The Court relied on the decision in EEOC v. Kronos, Inc., 620 F.3d 287 (3d Cir. 2010) (discussed here) for the proposition that the “EEOC’s investigatory power is broad. . . and it need not cabin its investigation to a literal reading of the allegations in the charge.” Id. at 8. Additionally, because the Court found that there had been more than one isolated incident of alleged harassment in the Defendant’s facility, it held that documents relating to such claims were “not unreasonable, and not overly broad” even if they were from departments outside of the area where the alleged harassment occurred. Id. at 10-11.
On the bright side for the Defendant, the Court approved its confidentiality order relating to the employee contact information that the EEOC requested. Specifically, the Court prohibited the EEOC from disclosing to Ramierez or his attorney, “the private contact information, namely addresses and phone numbers of all employees” supervised by one of the alleged harasses during his tenure at the Defendant’s company. Id. at 13-14. The Court reasoned that the Defendant met its burden of establishing good cause that disclosure of the employee contact information would create a serious injury. Because the Defendant submitted evidence that Ramierez’s attorney works for an organization that used employee contact information for union organizing, improper solicitation, and bullying tactics in a separate lawsuit, the Court stated that it “understood [the Defendant’s] concern that the personal contact information of its employees could be used for improper purposes.” Id. at 15. Judge Surrick explained that his “concerns were heightened” at the hearing on the EEOC’s application because the hearing in no way lessened “concerns that the personal contact information of [the Defendant’s] employees — most, if not all, of whom have nothing to do with Ramirez’s sexual harassment claim — could be used improperly.” Id. Thus, the Court granted the Defendant’s order to safeguard its interest in maintaining the confidentiality of the Defendant’s employee data.
Implications For Employers
EEOC v. Farmer’s Pride reaffirms the EEOC’s broad subpoena power. This is of significant importance because as the EEOC continues to initiate systemic investigations, it increasingly issues requests to employers for nationwide data concerning their personnel and employment practices. Judge Surrick’s decision follows EEOC v. Kronos, 620 F.3d 287 (3d Cir. 2010), and limits available arguments against the EEOC’s subpoena power as a means of forcing employers to turn over their data. On the bright side for employers, however, Judge Surrick granted the Defendant’s confidentiality order – which employers are wise to consider when battling EEOC subpoenas.