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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.