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Employer Law Report

Federal Court Reels In EEOC’s Fishing Expedition

Posted in EEO

Last month, we reported on a Seventh Circuit case demonstrating the broad scope of the EEOC’s investigative and supervisory powers. In that case, EEOC v. Konica Minolta Business Solutions U.S.A., Inc., the court upheld an EEOC subpoena seeking to obtain the production of hiring data from the employer in response to a charge alleging racial discrimination with respect to terms and conditions of employment and eventually discharge. Today, we report on a case that demonstrates that the EEOC’s investigative and subpoena powers are not limitless.

In EEOC v. UPMC, Carol Gailey, the charging party, was terminated by The Heritage Shadyside on June 22, 2008, for exceeding her maximum available leave of absence. Heritage Shadyside is a wholly-owned subsidiary of UPMC Senior Communities, Inc., which in turn is a wholly-owned subsidiary of UPMC. Heritage Place employs 170 people while UPMC employs over 48,000 people. Ms. Gailey filed a charge with the EEOC alleging disability discrimination. In response, Heritage Shadyside filed a position statement and attached several UPMC policies, including the leave of absence policy, which provided the basis for termination. The EEOC then sent a request for information to UPMC – not Heritage Shadyside – requesting the identities of employees at "all facilities in the Pittsburgh region" who had been terminated pursuant to the UPMC leave and disability policies for the period July 1, 2008 "to the present." UPMC objected to the scope of the EEOC’s request and the EEOC issued a subpoena for this information.

When UPMC refused to provide the subpoenaed information, the EEOC filed an application with the federal district court for the Western District of Pennsylvania for enforcement of a subpoena seeking the identity of these employees. The district court, in an opinion issued on May 24, 2011, refused to enforce the subpoena. Despite noting that the test for enforcing an EEOC subpoena is not onerous and requires only that the requested information "might cast light" on the charge allegations, the court concluded that the EEOC’s subpoena to UPMC was "an improper fishing expedition that seeks information that is not relevant to the underlying charge. Indeed, the EEOC in its brief conceded that it was seeking information regarding worksites other than where the charging party worked to find out if other employees were terminated based for exceeding the maximum leave period. But, the court held that the EEOC had done "almost nothing" to determine the specific facts relating to the underlying charge and that it should have done so before "launching an inquiry into a tangential alleged systemic violation." Furthermore, the court noted that the EEOC failed to satisfactorily explain how the information requested in the Subpoena would "cast light" on Gailey’s claim since the subpoena did not even cover the time period of her employment.

The UPMC decision can be squared with the Seventh Circuit’s Konica decision. In Konica, the EEOC contended that obtaining minority hiring data might cast some light on the alleged discriminatory treatment of the charging party. In UPMC, the EEOC offered no pretense that its target has shifted away from the individual charge before it. Both decisions, however, highlight the importance of considering the potential ramifications of information provided to the EEOC in response to a charge of discrimination. Here, UPMC probably could not have avoided providing a copy of the policy pursuant to which the charging party was terminated. On the other hand, the hiring data provided by Konica (at least from this distance) appears to have been unnecessary to disposing of the charge.

This UPMC decision provides a welcome restraint on the EEOC’s aggressive efforts to use individual charges to identify and pursue alleged systemic discrimination. Nevertheless, employers with multiple subsidiaries and worksites must understand that they open themselves up to potential charges of systemic pattern and practice charges when they have policies that apply to all affiliated workplaces. Indeed, UPMC provided the EEOC with a red flag for a potential systemic investigation by submitting with its position statement employment policies that applied to all of its 48,000 employees even though the underlying charge applied only to a small subsidiary entity. To avoid sending up a red flag to the EEOC, employers with multiple subsidiaries or worksites should consider having separate policies for each entity even if the policies’ content are the same across the entire organization. Doing so will not necessarily avoid a systemic charge, but may make the potential less obvious to the EEOC.