A recent decision issued by the Tenth Circuit Court of Appeals provides support for employers seeking to avoid broad and seemingly irrelevant Requests for Information by the Equal Employment Opportunity Commission (“EEOC”).  While an employer’s response to Requests for Information is usually an avenue to support its defenses, in the rare instance of overreaching or an apparent fishing expedition, employers have additional authority with which to negotiate a compromise regarding the scope of the EEOC’s requests. 

The last several years appear to have brought an increase in EEOC Requests for Information in connection with Charge investigations, prompting employers to produce extensive documentation about not only a Charging Party, but other employees.  In a fight over just how much the EEOC can request, the Tenth Circuit found in favor of the employer and limited the EEOC’s subpoena power. 

In the case at issue, the EEOC first served Requests for Information regarding employees other than the Charging Party, who asserted a claim for disability discrimination.  After the employer declined to provide the requested information regarding other employees, the EEOC subpoenaed the records it sought. 

The Tenth Circuit recognized the EEOC’s subpoena power but held that the EEOC must actually allege something to establish a pattern of discrimination to support such a broad request for records implicating a much larger number of employees.  As such, employers are able to push back on the EEOC’s subpoena power, as it is not without limits.