EEOC subpoenas seeking expanded disability, pregnancy bias info not enforced

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By Kathleen Kapusta, J.D. — Affirming the lower court’s refusal to enforce an EEOC administrative subpoena seeking information from an employer relating to an individual’s charge of disability and pregnancy discrimination, the Tenth Circuit found that while the disability request could have possibly uncovered pattern-or-practice evidence, the lower court did not abuse its discretion in finding the employer’s alleged ADA violation, without more, was insufficient to warrant an expanded investigation. Nor did the lower court abuse its discretion regarding the EEOC’s request related to pregnancy discrimination allegations given the agency’s “paltry explanation” of how it was relevant, the overbreadth of the request, and its burden of showing the subpoena’s relevancy to the charge (EEOC v. TriCore Reference Laboratories, February 27, 2017, Matheson, S.).

Shortly after the phlebotomist began working for TriCore, a medical reference laboratory, she requested accommodations for her rheumatoid arthritis, which was purportedly exacerbated by her pregnancy. After reviewing her doctor’s recommendations that she sit for 75 percent of her shift and avoid exposure to infectious diseases, TriCore determined that she could not safely perform her job. It offered her the opportunity to apply for other positions and when she did not, it terminated her.

After she filed a charge with the EEOC alleging disability and pregnancy discrimination, TriCore explained to the agency that it had provided her a reasonable accommodation by offering her the chance to apply for other positions. Viewing this response as suggesting an ADA violation, the EEOC informed TriCore that it was expanding its investigation, citing its compliance manual for authority. It then requested a complete list of employees who had requested an accommodation for disability (the disability request) and a complete list of employees who had been pregnant while employed at TriCore.

Subpoenaed. When TriCore refused to comply, the EEOC subpoenaed the information. TriCore refused to comply with the subpoena and the EEOC asked the district court to enforce it. Although the court found it to be a “close call,” it denied the EEOC’s request.

Difficult to pin down. Agreeing with the district court that the “EEOC’s real intent in requesting this [information was], in fact, difficult to pin down,” the Tenth Circuit noted that on appeal, the EEOC attempted to clarify its intent, pointing to two purposes: to determine whether TriCore had a pattern or practice of violating the ADA and whether it treated the employee less favorably than other comparable employees. Those purposes, said the court, corresponded to the two subpoena requests—with the disability request relating to the pattern-or-practice rationale and the pregnancy request relating to the comparator-evidence rationale.

Pattern or practice. The EEOC sought pattern-or-practice evidence through its request for information about other disabled employees who had asked for accommodations. Assuming the EEOC was correct that TriCore’s admission that it had allowed the employee to apply to vacant positions instead of reassigning her was tantamount to admitting an ADA violation, the district court nonetheless did not abuse its discretion in ruling that such an admission did not justify the EEOC’s expanded investigation into whether TriCore had a pattern or practice of violating other employees’ ADA rights, the appeals court stated. As in EEOC v. Burlington Northern Santa Fe Railroad, the EEOC’s disability request referenced only the individual charge and did not mention “any other charging party, an additional charge . . . or anything else” that might suggest the EEOC was investigating an additional charge that TriCore had a pattern or practice of discrimination. Nor could the EEOC rely on its letter informing TriCore of its intent to expand its investigation as the letter was not a “charge” of discrimination, which is required for the EEOC to seek information about alleged discrimination.

The EEOC also could not rely on its compliance manual, as it was not a statutory basis to expand its investigation and was not entitled to special deference. And while the EEOC quoted Burlington Northern to suggest it could expand an investigation if it “ascertains some violation warranting a broader investigation,” this passage, read in the context of the entire opinion, made clear that a single discriminatory act does not, by itself, warrant a broader pattern-or-practice investigation. Thus, said the appeals court, the district court did not abuse its discretion in determining the EEOC had not satisfied its burden to justify its expanded investigation.

Comparator evidence. Turning to the pregnancy request, the appeals court first found that the EEOC waived part of its comparator-evidence argument on appeal—the part relating to its disability request—as it limited its comparator-evidence argument to the pregnancy request in its opening brief on appeal. Thus the court considered the comparator-evidence rationale only as to the pregnancy request.

The district court determined the pregnancy request—which sought a list of TriCore employees who had been pregnant while employed there and information about whether they sought or were granted any accommodations—was not relevant because nonpregnant employees, not pregnant employees, would be relevant comparators. Unlike the district court, however, the appeals court determined that the pregnancy request may seek information that is potentially relevant to the employee’s charge. For instance, the court explained, evidence that other nondisabled, pregnant employees were granted accommodations may tend to prove that the employee was denied an accommodation on the basis of her disability. And possible evidence that TriCore accommodated nonpregnant employees, but not pregnant employees, might be relevant to show that a proffered reason for her termination was pretextual.

The problem for the EEOC, however, was that it did not present these relevance arguments in the district court and thus it failed to meet its burden of explaining how the pregnancy request would offer information relevant to the employee’s charge.

Even if it had provided this explanation, its request would nonetheless have been overbroad because it sought information having no apparent connection to the employee’s charge. “Unlike the disability request that is limited to other disabled employees who sought an accommodation, the pregnancy request seeks information about pregnant employees who never sought an accommodation,” the court explained, observing that in the district court, the EEOC did not proffer any reason to support how this evidence would support the employee’s charge beyond general assertions of relevancy.

In affirming the lower court, the appeals court noted that its decision should not preclude the EEOC from formulating a request for information to overcome the concerns discussed in the opinion.

Source: EEOC subpoenas seeking expanded disability, pregnancy bias info not enforced

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