EEOC-Initiated Litigation - 2022 Edition

8 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP on the allegations against the employer.” 39 Under this rubric, the Ninth Circuit found the requested information to be relevant . 40 Following the McLane decision, some lower courts have shown a willingness to enforce broad requests for information contained in EEOC subpoenas. For example, in EEOC v. Centura Health , 41 the Tenth Circuit upheld a decision by the U.S. District Court for the District of Colorado enforcing an EEOC subpoena that called for, among other things, information about all employees over a three year time period who were placed on the company’s non-FMLA leave or who requested an accommodation for their disability. 42 The District Court noted that relevance within the context of an EEOC subpoena is “generously construed” and upheld enforcement of the subpoena based on the number of charges the EEOC had received regarding the employer and the widespread geographic distribution of those charges . 43 The employer challenged the District Court’s ruling with respect to relevance, arguing that there had been no pattern-or-practice charge filed against it, and that such class-wide information was only relevant if there is a specific and substantial connection between the charge and the information requested. 44 The Tenth Circuit nevertheless held that eleven charges of disability discrimination, which all alleged a failure to accommodate across a handful of facilities, was sufficient to warrant an investigation into potential pattern-or-practice claims . 45 Other courts have relied on McLane to enforce similar requests for class-wide information, despite arising out of a handful of charges. 46 In addition to scope issues, courts have also upheld broad concepts of “relevance” to enforce EEOC subpoenas. For example, in EEOC v. VF Jeanswear LP , 47 the Ninth Circuit reversed a decision from the U.S. District Court for the District of Arizona that denied the EEOC’s request for personal information identifying all supervisors, managers, and executive employees at a company nationwide, including various details about their positions, their employment and termination dates, and the facilities where they worked. 48 A similar concern over the scope of “relevance” was at issue in EEOC v. 39 Id. 40 The Ninth Circuit reasoned that the pedigree information was related to the unlawful practice being investigated and “might cast light” on the allegations against the employer. Id. Finally, on remand in 2018, the District Court rejected the employer’s burdensomeness arguments, holding that it had already produced significant data and software and had imposed an even greater burden on itself by removing the personal identifying information from this data, which was now sought by the EEOC. EEOC v. McLane Company, Inc. , No. 12-CV-2469, 2018 U.S. Dist. LEXIS 70127, *1, *7-8 (D. Ariz. Apr. 25, 2018). 41 EEOC v. Centura Health , 933 F.3d 1203 (10th Cir. 2019). 42 Id. at 1209. The underlying charges of discrimination alleged that the employer violated the ADA by terminating their employment or refusing to allow them to return to work after medical leave. Id. at 1205. The EEOC later informed the company that its investigation would be expanded to include related allegations by other aggrieved individuals involving bases or issues not directly affecting the charging parties, and issues not alleged in the charges. Id. at 1205-06. 43 Id. at 1206. 44 Id. at 1208. According to the employer, “the only common theme tying the requested information to the eleven individual charges is the broad fact that all the charges alleged disability discrimination.” Id. 45 Id. at 1209. 46 For example, in EEOC v. Nationwide Janitorial Services, No. 18-CV-96, 2018 WL 4563053 (C.D. Cal. Aug. 17, 2018), the U.S. District Court for the Central District of California enforced an EEOC subpoena seeking the names, contact information, and additional data for all employees in the state of California. Id . at *3. Relying largely upon McLane , the District Court held that the EEOC had “evidence (apart from the vague boilerplate allegations in the original complaints) of incidents of additional potential discriminatory or violative conduct that go beyond the one-attacker-one-location allegations that commenced the investigation.” Id . at *9. Thus, according to the EEOC, because it was investigating a pattern and practice of behavior, it was entitled to obtain broader evidence. Id . (citing EEOC v. Shell Oil Co ., 466 U.S. 54, 68-69 (1984); EEOC v. McLane Company, Inc ., 857 F.3d 813, 815-16 (9th Cir. 2017)). Given the “generous construction” of the concept of relevance, the court concluded that employee contact information is relevant to the EEOC’s legitimate investigation. Id . (citing McLane Co., Inc. v. EEOC , 137 S. Ct. 1159, 1165 (2017)). Similarly, in EEOC v. Oncor Electric Delivery Co ., No. 3:17-MC-69, 2017 U.S. Dist. LEXIS 189584 (N.D. Tex. Nov. 16, 2017), the U.S. District Court for the Northern District of Texas overruled the employer’s objection to handing over widespread employee information. The EEOC requested, and then subpoenaed, a detailed list of all company employees who had suffered discipline or been discharged as a result of that policy. Id . at *8-9. Relying upon McLane , the District Court found that, based upon the evidence of a widespread policy already uncovered, the employee list was plainly relevant and well within the EEOC’s authority to obtain in furtherance of its investigation. Id. at *17-18. 47 EEOC v. VF Jeanswear LP , 769 F. App’x. 477 (9th Cir. 2019). In that case, a former employee alleged that she was harassed, demoted, underpaid, and not offered opportunities for promotion based on her sex. Id. at 478. 48 The Ninth Circuit held that the District Court had abused its discretion because, in conducting its relevance analysis, it proceeded from the premise that the scope of the charge, and the relevancy of the material requested, would be limited to the part of the charge that related to the personally-suffered harm of the charging party: “EEOC subpoenas are enforceable so long as they seek information relevant to any of the allegations in a charge, not just those directly affecting the charging party.” VF Jeanswear LP , 769