As the EEOC trains its focus on systemic enforcement actions, discovery battles over probative claimant information will continue to grow in importance proportionally with the claimant class size. Employer access to specific types of claimant information can make a critical difference in mounting key defenses, testing claimant credibility, and limiting available damages. The EEOC, however, does not hand over such information without a fight.
Recently, in EEOC v. Signal Int’l, LLC, Case No. 12-557 (E.D. La. Sept. 10, 2013), Judge Daniel Knowles of the U.S. District Court in the Eastern District of Louisiana refereed a two-on-one brawl among the EEOC, claimant interveners and the defendant employer over the propriety of discovery into claimant immigration history and status.
In this case, the EEOC asserted four Title VII claims against the employer, including: (1) a §703(a) violation for creation and perpetuation of a hostile work environment; (2) a § 703(a) disparate treatment claim for alleged imposition of less favorable terms and conditions of employment on employees of Indian descent; (3) retaliation claims; and (4) a § 706 pattern or practice claim for both hostile work environment and disparate treatment. Concurrently, individual claimants brought a separate action against Signal, entitled David v. Signal Int’l, LLC, Case No. 08-1220 (E.D. La.). As is common in EEOC enforcement actions, the David plaintiffs also intervened in the EEOC’s action against Signal. You can read our analysis of prior developments in these companion cases here.
After filing dueling motions for protective orders, the parties briefed the issue of whether Signal should receive access in discovery to claimants’ immigration-related documents, including claimants’ T-visa applications. Signal maintained that discovery into claimants’ immigration-related documents was necessary for it to test each claimant’s motive, bias, and credibility.
Despite acknowledging Signal’s interest in the information at issue, Judge Knowles held that (i) the claimants’ current immigration status was a “collateral issue” in the case; and (ii) allowing discovery of records relating to immigration history and status had a chilling or in terrorem effect on claimants and placed an undue burden on private enforcement of employment discrimination laws sufficient to outweigh the probative value of the information. Id. at 12. Notably, in arriving at this conclusion, Judge Knowles relied on a litany of similarly-reasoned Ninth Circuit cases. Id. at 9-10.
As a consolation, Judge Knowles did grant Signal’s request to restrict the EEOC from improperly disseminating information it secured from Signal through pre-trial discovery. Id. at 13. After being “lambaste[d]” on Dan Rather Reports by its adversaries in the case, Signal sought judicial intervention to prohibit the EEOC from improper use of evidence secured through pre-trial discovery. Id. at 5. Judge Knowles agreed with Signal’s position, notwithstanding the EEOC’s invocation of the Freedom Of Information Act, which the Court considered inapposite. Id. at 14.
Implications For Employers
EEOC v. Signal Int’l, LLC serves as a reminder to employers that courts are not adverse to place substantial limits on discovery of any information that could deter claimants from participating in Title VII litigation. Nonetheless, aggressive pursuit of relevant claimant information is critical to defending against systemic enforcement actions, and despite the relevance of some information, the EEOC will often take unreasonable and aggressive positions in seeking “protection” from its disclosure. Notably, the fight on immigration related information is not new.
The EEOC routinely trots out the same legal authority relied on in Signal in many of its litigation cases — including cases where immigration status is directly at issue — in an attempt to argue it is never discoverable. However, in many instances, the case law precedent is distinguishable because immigration status is a relevant issue to the case, or immigration status is relevant to damages in an employment discrimination action. Indeed, various cases have found that immigration status is relevant. See EEOC. v. Evans Fruit Co., Inc., Case No. 10-CV-3033, 2011 WL 2471749, at *1 (E.D. Wash. June 21, 2011) (“[T]he court concludes immigration status does have potential relevance to emotional distress damages . . . That said, because immigration status has potential relevance to damages, it is a legitimate area of discovery and the court will allow the same, subject to an appropriate protective order which ensures the information obtained remains confidential.”); Aguilar v. Immigration and Customs Enforcement Div., No. 07-Civ-8224, 2009 WL 1789336, at *4 (S.D.N.Y. June 23, 2009) (“[T]he immigration status of the named Plaintiffs and putative class members may be relevant to their allegations of emotional and mental distress . . .”); EEOC v. First Wireless Group, Inc., No. 03-CV-4990, 2007 WL 586720, at *9 (E.D.N.Y. Feb. 20, 2007) (noting discovery of immigration status may be relevant to damages in an employment discrimination action).