In what was a welcome decision for employers recently targeted by EEOC administrative subpoenas, on February 27, 2012, the U.S. Court of Appeals for the Tenth Circuit upheld a district court’s refusal to enforce what it deemed to be an “incredibly broad” administrative subpoena from the Equal Employment Opportunity Commission. The decision — EEOC v. Burlington N. Santa Fe Ry. Co., No. 11-1121 — resolved Burlington Northern Santa Fe Railway Co.’s two-year battle with the agency over an administrative subpoena seeking nationwide recordkeeping data. The EEOC’s administrative enforcement powers stem directly from the agency’s broad legislative mandate to investigate systemic discrimination, the frequency of which has increased in recent years. But, the Tenth Circuit’s decision is good news for many employers. Not only does its decision confirm that the EEOC’s subpoena and discovery authority is, in fact, limited, but it also prohibits the agency from initiating “pattern or practice” discovery that is irrelevant to its current charges.
The administrative saga began after two rejected job applicants filed EEOC charges against BNSF in Colorado, alleging discrimination on account of a perceived disability under the Americans with Disabilities Act. After receiving the charges, the EEOC sent BNSF a request for “any computerized or machine-readable files … created or maintained by you … during the period December 1, 2006 through the present that contain electronic data about or effecting [sic] current and/or former employees … throughout the United States.” Essentially, any information for the previous four years regarding BNSF’s current or former employees would have to be responsive to the EEOC’s request. BNSF challenged the scope of information requested by the EEOC, demanding documentation that supported the agency’s broad request. The EEOC refused, instead serving a subpoena for the information previously requested, mentioning only that it was expanding its investigation. After BNSF still refused to provide the requested information, the EEOC moved to enforce its subpoena.
The Tenth Circuit’s decision is noteworthy in two respects. First, the Court of Appeals upheld the lower court’s refusal to enforce the subpoena. Although 42 U.S.C. § 2000e-8(a) allows the EEOC to access “any evidence of any person being investigated” as long as it “relates to unlawful employment practices … under investigation,” the Court found that the “wide deference … does not transcend the gap between the pattern and practice investigation and [ ] private claims.” Second, the Tenth Circuit criticized the agency for waiting until the enforcement action to explain the alleged relevancy of its request, stating that “[t]he EEOC should not wait until it applies to the district court to supply justification or evidence that should have been provided during the administrative enforcement phase.” Because the request for information was not “relevant to a charge under investigation,” the Court found that the EEOC essentially sought plenary discovery, information that the EEOC had no jurisdiction to seek.
As the EEOC continues to aggressively pursue pattern and practice charges and investigations, disputes over the breadth of the agency’s administrative subpoenas will only increase. For employers, decisions like that of the Tenth Circuit Court of Appeals in Burlington offer reassurance that courts will temper overbroad information requests for the agency and encourage narrow and relevant information requests going forward.