Contrary to the U.S. Supreme Court’s restriction of class actions in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), courts have granted the Equal Employment Opportunity Commission (“EEOC”) broad power to issue nationwide pattern-or-practice subpoenas even though only individual charges were filed against the employer. For example, eleven current and former employees, working among multiple locations, filed disability discrimination charges against their employer alleging wrongful termination by refusing to allow them to return to work after medical leave. Rather than focusing upon those eleven workers and their own grievances, the EEOC issued an administrative subpoena seeking extensive information about other workers who were employed at those eleven sites if such employees, between August 2009 and August 2014, requested an accommodation due to a medical condition or were identified as disabled. Rejecting defenses of relevance, timeliness and undue burden, the federal Tenth Circuit Court of Appeals upheld the subpoena and granted broad pattern-or-practice level investigative authority. EEOC v. Centura Health.

Among the lessons are: (1) be certain that accommodation and compliance policies are lawfully drafted and fairly enforced; (2) ensure that managers and HR understand obligations imposed by the ADA as well as state or local disability discrimination laws; and, (3) do not expect that claims will remain local if works from multiple sites raise similar allegations.