On August 1, 2013, Case New Holland, Inc. and CNH America LLC, commenced federal court litigation against the EEOC and one of its Investigators from the Philadelphia District Office (collectively “EEOC”) conducting an age discrimination investigation against the CNH plaintiffs. The lawsuit was commenced by Seyfarth Shaw in the U.S. District Court for the District of Columbia. It was assigned to District Judge Reggie Walton. The lawsuit garnered immediate media interest in terms of the nature of the conduct challenged.

The CNH complaint alleges that the EEOC violated the Administrative Procedure Act (“APA”) and the Fourth and Fifth Amendments to the U.S. Constitution by sending a blast e-mail to the CNH e-mail addresses of 1,169 current employees, including managers, for the purpose of trolling for “alleged victims of discrimination,” without prior notice to CNH and without any finding that CNH had violated the Age Discrimination in Employment Act (“ADEA”).

There are five counts in the complaint. The First Count asserts that no authorizing rule or regulation allowed the blast e-mail, in violation of the APA. The Second Count asserts that the blast e-mail was neither “necessary [n]or appropriate,” and thus exceeded the permissible scope of the EEOC’s authority under Section 7(a) of the ADEA, 29 U.S.C. § 626(a), in violation of the APA. The Third Count alleges that the EEOC failed to comply with its own Compliance Manual’s provisions on the conduct of investigations, again in violation of the APA. The Fourth Count asserts an unreasonable search and invasion of the CNH computer network and of the privacy interests of CNH employees, in violation of the Fourth Amendment to the U.S. Constitution. Lastly, the Fifth Count asserts that the EEOC blast e-mail trespassed on the CNH computer network and, by so doing, constituted a taking without compensation in violation of the Fifth Amendment to the Constitution.

The CNH v. EEOC complaint can be accessed here.

The litigation has garnered substantial publicity, and is likely to continue to do so. The government must respond to the complaint by October 4, 2013, in the form of an answer or motion to dismiss.

At issue in the litigation is whether the EEOC has overreached by sending out a blast e-mail to business e-mail addresses, thus bypassing the employer, as part of its investigation of an ADEA charge. The EEOC has been criticized recently, for not identifying victims in its litigation, and the strategy behind the blast e-mail may have been an overzealous effort to address these criticisms.