Lab Doesn’t Have to Give Broad Personnel Data to EEOC

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By Kevin McGowan

A New Mexico testing laboratory doesn’t have to submit broad personnel information to the Equal Employment Opportunity Commission in the agency’s investigation of a single discrimination charge, a federal appeals court ruled ( EEOC v. TriCore Reference Labs. , 2017 BL 59316, 10th Cir., No. 16-2053, 2/27/17 ).

The case is analogous to one currently pending before the U.S. Supreme Court in that the EEOC sought a complete list of identifiable employees at TriCore Reference Laboratories who either had requested accommodation for disabilities or had become pregnant while working there. That information would allow the agency to determine if a “pattern or practice” of discrimination exists at TriCore, the EEOC argued.

But the U.S. Court of Appeals for the Tenth Circuit Feb. 27 affirmed a district court’s decision to deny subpoena enforcement. The lower court didn’t abuse its discretion by concluding the EEOC’s broad data request wasn’t relevant to a former TriCore employee’s individual bias charge, the Tenth Circuit said.

A ‘Counterpunch’ Employers Welcome

The decision is an “important counterpunch” to the EEOC’s “too common practice” of issuing “overbroad” subpoenas, said Michael Bracken, an attorney with NT Lakis LLP in Washington, which submitted an amicus brief for the Equal Employment Advisory Council, an employer association.

EEOC district offices must meet quotas for developing systemic cases, which refers to those that challenge employer practices affecting an entire company, industry or region, said Rae Vann, an NT Lakis partner who also is the EEAC’s general counsel.

The EEOC’s request for all of a company’s personnel information, when only a single worker has filed a discrimination charge, is an “unfortunate, unintended” consequence of the pressure to identify and develop systemic cases, Vann told Bloomberg BNA Feb. 28.

The EEOC is “really pushing investigators into delving too deeply,” she said.

High Court Facing Similar Issue

Similar issues are raised in McLane Co. v. EEOC, a subpoena enforcement case argued before the Supreme Court Feb. 21. The primary issue before the justices is what standard appeals courts should use in reviewing lower court decisions to enforce or quash an EEOC subpoena.

But it will be interesting to see if the justices “do weigh in at all” on the “breadth” of the underlying subpoena in McLane or confine their opinion to the standard of review, Vann said.

Employers that confront broad EEOC information requests face a dilemma, Bracken told Bloomberg BNA Feb. 28.

The commission is in “a highly leveraged position” compared with the employer in terms of both resources and public relations, Bracken said.

It “moves things on” and “keeps things out of the spotlight” for an employer to comply with the EEOC’s information requests even if they seem excessive, he said.

As a “practical matter,” most employers don’t want to spend the time or money involved in litigating over the scope of an EEOC investigation, Vann said.

But the Tenth Circuit’s decision in TriCore’s favor probably will encourage more employers to fight back if they perceive the EEOC is overreaching, Bracken said.

The EEOC said it’s reviewing the decision but declined further comment Feb. 28.

Failed to Meet Relevance Standard

The EEOC argued its request for data on all TriCore employees who requested accommodation was relevant to former employee Kellie Guadiana’s charge that the company violated the American with Disabilities Act by not accommodating her rheumatoid arthritis or her pregnancy.

The information would allow the agency to discern if TriCore might be systematically discriminating against workers with disabilities, the commission said.

Its request for a list of all TriCore employees who became pregnant would allow the EEOC to determine if the company treated Guadiana less favorably than other, similarly situated workers, the agency said.

But the EEOC’s requests don’t meet the relevance standard that governs subpoena enforcement under the civil rights statutes, Judge Scott M. Matheson wrote in an opinion joined by Judges Gregory A. Phillips and Carolyn B. McHugh.

Nothing in Guadiana’s charge or supporting documents suggests a “pattern or practice” of disability bias, the court said. Requiring TriCore to provide the names of pregnant workers who never sought accommodations has “no apparent connection” to Guadiana’s disability or sex bias charge, the court said.

EEOC attorneys in Washington represented the agency. Foster Rieder & Jackson PC represented TriCore.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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