EEOC investigations can have broad scope

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Warren Buliox
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Imagine that one of your former employees, Bill, filed a Charge of Discrimination against your company with the Equal Employment Opportunity Commission (“EEOC” or the “Commission”), alleging sex discrimination in violation of Title VII.

As is standard practice, you file a statement of position detailing the facts and adamantly denying Bill’s allegations. For you, this is a relatively open and shut case, as Bill was discharged for falsifying company documents.

For the EEOC, however, the case is far from straightforward. From apparently talking to Bill, the Commission believes there may be much more to the case than initially disclosed and now seeks additional information. Specifically, the Commission requests disciplinary records on all employees in Bill’s department. The Commission also wants the name, sex, race and age of each and every employee who worked for the company from 2007 to the present.

In reviewing the Commission’s request, a few questions come to mind. For instance, how are disciplinary records on all employees in Bill’s department relevant to Bill’s charge of discrimination? Also, what does information on race and age have to do with Bill’s allegations of sex discrimination and do you really have to hand over that information?

The EEOC has broad investigatory powers and the right to request and obtain “any evidence of any person being investigated or proceeded against that relates to unlawful employment practices, and is relevant to the charge under investigation.” 42 U.S.C. 2000e-5(a). While the EEOC has broad investigatory power, its ability to gather information during an investigation is not unbridled. Notably, the information the EEOC seeks must be reasonably relevant to the matter and not too indefinite or unreasonably broad or burdensome.

The “requirement of relevance, like the charge itself, is designed to cabin the EEOC’s authority and prevent ‘fishing expeditions.'” EEOC v. United Airlines, Inc., 287 F.3d 643, 653 (7th Cir. 2002); also see EEOC v. City of Milwaukee, 919 F.Supp 1247, 1259 (E.D.Wis. 1996) (holding that the EEOC’s request for medical records of third parties was not reasonably relevant and could not be enforced with an order compelling production of such documents); EEOC v. K-Mart Corp., 694 F.2d 1055, 1063 (6th Cir. 1982) (“[t]he EEOC is entitled to have access only to evidence that is relevant and material to the charge of discrimination.”).

As many employers find out the hard way, the notion of relevancy in the context of an EEOC investigation is a broad one. EEOC v. Elrod, 674 F.2d 601, 613 (7th Cir. 1982). In fact, courts routinely give the EEOC access to information which “might cast light on the allegations against the employer.” EEOC v. Shell Oil, 466 U.S. 54, 68-69 (1984) (emphasis added). Under this standard, most (but not all) information the EEOC seeks is considered to be relevant for the purposes of the investigation.

In Bill’s case, since Title VII analysis requires a look at whether similarly situated employees were treated less favorably than the charging party, information on other employee’s in Bill’s department “might” cast light on whether discrimination occurred as alleged and is therefore likely relevant (for the purposes of the investigation) and should be disclosed. This dynamic may change, however, if the Commission is seeking records on all employees, regardless of position or department, in all five of your locations.

That being noted, what about the Commission’s request for information on the race and age of other employees? This information cannot possibly by relevant to Bill’s allegations of sex discrimination, right? Well . . . technically it may not be, but the EEOC, by Congressional mandate, is required to work to “prevent any person from engaging in any unlawful employment practice.” 42 U.S.C. 2000e-5(a). Accordingly, the EEOC Compliance Manual advises its investigators to be on the lookout for possible unrelated violations of the law which can be considered later as a basis for new charges. This does not mean that the requirement of relevancy is out the window. This simply means that employers should be on the lookout for these types of efforts and should take steps to ensure that they are in compliance with anti-discrimination laws across the board.

As to the question of relevance specifically, the Commission does, on occasion, look beyond the four corners of the charge to determine whether a violation of the law exists. To do so, however, the claim(s) not explicitly stated in the charge of discrimination must be reasonably related to the claims in the charge and must have been expected to grow out of an investigation of the same. Harper v. Godfrey Co., 45 F.3d 143, 148 (7th Cir. 1995). In Bill’s case, whether information on the age and race of other employees is reasonably related to his charge of discrimination depends on the actual circumstances of the case, which will require a very fact-specific analysis. From what we have given you alone, however, it would appear that the information sought is likely not relevant to Bill’s charge.

Given the range of latitude courts afford the EEOC in determining the scope of their investigations, employers are advised to use caution when considering making objections and/or refusing to comply with requests for information. Employers should make good faith efforts to fully cooperate throughout an EEOC investigation and should only object and/or refuse to provide requested material if there is a strong legal basis for doing so. To do otherwise would only invite additional headache and expense.

Warren Buliox is an attorney at Gonzalez Saggio & Harlan, practicing employment law in the Milwaukee office. He can be reached by telephone at 414-277-8500 or via email at [email protected].