Last Friday, the Seventh Circuit Court of Appeals issued a decision in EEOC v. Konica Minolta Business Solutions U.S.A., Inc. that will embolden the EEOC’s aggressive use of its investigatory powers to require production of evidence in a single employee charge that could support a more systemic investigation.
In Konica, a salesperson filed a discrimination charge with the EEOC alleging that, although he had been hired only eight months previous, he was subjected to different terms and conditions of employment and then ultimately discharged due to his race. During the course of its investigation into the charge, the EEOC learned through information produced by Konica that relatively few African Americans were employed at the facility where the charging party worked or at other locations in the Chicago area. In addition, the information provided by Konica suggested to the EEOC that the majority of the African American sales persons at the charging party’s facility were on the same sales team. As a result, the EEOC requested and ultimately subpoenaed Konica records relating to its hiring practices for sales personnel at all of Konica’s Chicago-area facilities. Konica asked the EEOC to revoke the subpoena and, when the EEOC refused, notified the EEOC that it was refusing to comply. Konica argued that the hiring data was irrelevant to the charge, which was directed at terms and conditions of employment and termination. The EEOC then filed an application with the federal court for an order enforcing the subpoena.
The district court granted the EEOC’s application and the Seventh Circuit affirmed. Noting that Konica’s relevance argument was "too narrow," the Seventh Circuit stated that "the Commission is entitled generally to investigate employers within its jurisdiction to see if there is a prohibited pattern or practice of discrimination." Because the charging party had alleged unequal terms and conditions of employment, the EEOC was entitled to see whether Konica’s hiring practices "cast light" on the charging party’s race discrimination complaint. In reaching this conclusion, the Court held:
Nothing in this record suggests that the EEOC has strayed so far from either [the charging party’s] charge or its broader mission that it has embarked on the proverbial fishing expedition. The Commission has a "realistic expectation rather than an idle hope" that the hiring materials it seeks will illuminate the facts and circumstances surrounding [the charging party’s] allegations of race discrimination.
The Seventh Circuit’s Konica decision underscores the EEOC’s perspective in investigating charges of discrimination. Yes, it is investigating the specific charge before it. But, the EEOC also has its eyes wide open looking for evidence that may suggest a more systemic pattern of discrimination. The facts of Konica provide an excellent example of how a single employee claim of a racially discriminatory termination decision can lead to an investigation of the employer’s regional hiring practices. Another example of this kind of "investigation creep" can be found with respect to leaves of absence under the ADA. An employer who relies on a maximum medical leave of absence policy to support an employee termination can expect the EEOC to cast its net more broadly to see whether the policy is being enforced in a manner that systemically discriminates on the basis of disability.
In light of Konica, employers responding to EEOC charges of discrimination need to be mindful of the expansive nature of the EEOC’s investigatory powers and to limit their responses as much as possible to the facts and allegations contained in the charge. Otherwise, they risk closing one small hole in the dam, only to later cause a much larger breach in the dam further downstream.