We previously have reported on the EEOC's increasingly aggressive agenda to expand the scope of its charge investigations by subpoenaing employer documents that far exceed any potential need. Fortunately, many federal courts have rejected these fishing expeditions. EEOC v. Loyola University Medical Center presents another good example.
In Loyola, the charging party filed a disability discrimination charge with the EEOC when she was asked to submit to a psychological evaluation as part of a fitness for duty examination ("FDE") that she was required to undergo in order to return to work from a medical leave. As part of its investigation, the EEOC issued a Request for Information ("RFI") from Loyola, which included:
- a list of employees who were ordered by certain supervisors to take FDE's since January 2008,
- the results of the evaluations and the types of testing performed on those individuals, and
- the reasons each listed employee was required to submit to the FDEs.
Loyola promptly responded to the request and stated that only one employee had been required to submit to an FDE by the specified supervisors. However, Loyola, citing various federal and state privacy laws, refused to disclose the name of the individual, the results of the test, or the circumstances surrounding the request for the test.
In an effort to compel Loyola to produce the requested information, the EEOC issued a subpoena that far exceeded the scope of it's original RFI. Compared to its original request for information limited to FDEs requested by specific supervisors, the subpoena demanded the following information of every individual subjected to an involuntary FDE since January, 2008:
- The name, job title, address, and telephone number of each employee tested;
- The date and reason that each employee was tested;
- The name and position of the individual who required each test;
- Any documentation, including medical records and witness statements, to support the reason for subjecting each individual to a test;
- The results and copies of each exam;
- The reasons that an employee was either permitted or not permitted to return to work; and
- The name and position of the person who made the decision of whether or not each employee was permitted to return to work.
Loyola refused to provide the documents sought in the subpoena, which prompted the EEOC to file an enforcement action in federal court. The court agreed that the EEOC had overstepped its bounds and refused to enforce the subpoena, finding that the EEOC has failed to demonstrate either that the information sought is relevant to the underlying charge or that such information might reveal related evidence of discrimination. In reaching this conclusion the court seemed to be particularly swayed by the wide discrepancy between what the EEOC had originally sought from Loyola and the scope of the subpoena. Because the court concluded that the scope of the subpoena was over broad, it did not go on to consider whether the privacy laws cited by Loyola also protected the documents sought in the subpoena from production.
From this perspective, the information offered by Loyola in response to the RFI should have been sufficient to enable the EEOC to conduct its investigation. While the court's decision does not elaborate on any negotiations that may have followed Loyola's response, the court properly recognized that the excessive EEOC subpoena that followed was not warranted.
The lesson for employers to learn is that they should not necessarily be intimidated by EEOC threats to issue a subpoena if the agency is being unreasonable in the type of information it is seeking during the investigative process.