Tenth Circuit Agrees with Employer: EEOC Subpoena Too Overbroad

Two separate individuals filed discrimination charges pursuant to the Americans with Disabilities Act (“ADA”) with the Equal Employment Opportunity Commission (“EEOC”) against an employer alleging discrimination based on a perceived disability after they were not hired following a conditional offer of employment and a medical screening procedure.

The employer advised the EEOC that the offers were rescinded based upon specific medical requirements and safety concerns directly related to the position for which these individuals were hired. The EEOC subsequently sought from the employer “any computerized or machine-readable files…created or maintained by you … during the period December 1, 2006 through the present that contained electronic data about or effecting current and/or former employee … throughout the United States.”

The employer challenged the scope of the investigation and document request, which prompted the EEOC to issue a subpoena, broadening the investigation to include “pattern and practice discrimination” thus warranting the demand for nationwide information. The employer filed a petition to revoke or modify the subpoena, and though it was denied, the employer refused to comply with the request. The EEOC then applied to the district court for enforcement of the subpoena. In considering the scope of the investigation and breadth of the subpoena, the court found that the subpoena was “pervasive, and []seeks plenary discovery.” On appeal, the Tenth Circuit agreed with the district court, finding the discovery request to be “incredibly broad” and that the EEOC had “no jurisdiction or power to seek it.” The Court opined that “the EEOC is entitled only to evidence that is relevant to the charge[s] under investigation.”

Many subpoenas and document requests are written very broadly in the hopes that the recipient will feel compelled to fully comply based upon the nature of the document. However, sometimes, an employer may not have to comply where, as here, the request is overly broad and constitutes a “fishing expedition.”