Title VII of the Civil Right Act provides that, in connection with an investigation of a charge of discrimination, the Equal Employment Opportunity Commission “shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices… and is relevant to the charge under investigation.”

When the Commission decides to actively investigate a charge of discrimination, it typically issues a request for information to the employer. If the employer does not provide all the information requested, the EEOC has the power to issue an administrative subpoena. After receiving this subpoena, the employer has only five business days to petition the EEOC to revoke or modify the subpoena. Often, the employer’s “Petition to Revoke” contains straightforward arguments with the goal of demonstrating the EEOC subpoena seeks information not relevant to the underlying charge, is overly burdensome, or is otherwise flawed. The Commission itself rules on the Petition. If it determines that the subpoena is valid, the EEOC then can file an action in federal court seeking enforcement.

The consequence of an employer’s failure to comply with the short, five-day deadline, even by one day, can be severe. A court can rule the employer had waived its right to challenge the subpoena and enforce it without considering the employer’s meritorious objections. The short deadline is even more challenging in light of the manner in which the EEOC sometimes serves its subpoenas.

EEOC’s Internal Guidelines

The EEOC’s practices enhance the odds that its investigatory subpoena will be overlooked and the five-day deadline to petition to revoke will not be met. The EEOC instructs its investigators to serve a subpoena by U.S. mail on an appropriate “high ranking official.” Thus, the EEOC can and often does send the subpoena to the employer’s chief executive officer. Valuable time may be lost in routing the subpoena to an employer’s official with knowledge of the pending charge.

The EEOC also instructs its investigators, “Do not serve a subpoena on a private attorney representing a respondent unless the person subpoenaed has so requested before the issuance of the subpoena.” This too increases the possibility that the person most aware of the importance of the subpoena — often, the outside counsel — does not receive the subpoena until after a significant delay.

Practice Tips

Employers and their attorneys should consider making clear to all “high ranking officials” of the company, at the earliest stage of an EEOC investigation, that any subpoena should be directed to the official or attorney actually responsible for defending the charge of discrimination. If an employer has decided not to provide information in response to an EEOC request for information, its office personnel should be aware that a subpoena may be served and any correspondence from the EEOC should be directed immediately to the attention of the proper individuals.

Finally, employers that expect a subpoena should consider obtaining an agreement from the EEOC investigator that any subpoena will be served by both e-mail and U.S. mail on an appropriate, designated contact person.