EEOC Gets a Boost in Subpoena Power

The Equal Employment Opportunity Commission (EEOC) recently won a victory in the Second Circuit that will significantly increase its ability to investigate employer practices on a nationwide basis. Although the case does currently have limited precedent in Georgia employment law, we will have to keep an eye on the Eleventh Circuit to see if that court will follow suit.

The case, EEOC v. UPS, Inc., No. 08-5348, 2009 U.S. App. LEXIS 25395 (2d Cir. Nov. 19, 2009), overturned a lower court order that denied an EEOC subpoena which had sought national records from a company in which the case had only one Charging Party. That lower case had been relied on by a number of other employers to try to limit the EEOC’s subpoena power under those circumstances.

The UPS case involved the company’s “hairless face” policy, which was instituted in 1999. Prior to that time, male customer contact employees could wear beards; following that time, only mustaches. At the same time, the company carved out a religion exception to beardlessness.

The complainant was a Muslim who accused UPS of a pattern of failing to accommodate religious beliefs. He was eventually accommodated, but the case went on.

The EEOC subpoena, which the lower court denied, asked for the following information from the company on anational basis:

1. All documents relating to the Appearance Guidelines;

2. Any employment denial since 2004 based on those guidelines;

3. Everyone in the company who requested an religious accommodation; and

4. Everyone terminated from the company because of those guidelines.

The lower court held that the request was too broad for a single case.

The appeals court said that it was not. The Appellate court held specifically that the subpoena was not overbroad, and that the fact that the complainant was eventually accommodated did not go to the merits of the charges, saying that, “arguments as to the merits do not prevent the EEOC from investigating the . . . charges.”

The court did not rule on any other potential challenges to subpoenas, but the fact that the EEOC is definitively allowed to investigate an entire company’s set of relevant documents in service to one case can be seen as a victory for workers.

If you have any questions about the potential effects of this or any case on your employment, please contact us.