The scenario is familiar to employers responding to a Charge of Discrimination filed with the Equal Employment Opportunity Commission (EEOC). Even though the Charge only includes claims of discrimination by one person, the EEOC sends the employer a Request for Information that seeks data on other employees who may have been subject to the same alleged treatment. If the employer refuses to provide the information, the agency may issue an administrative subpoena to compel disclosure.
Last month in EEOC v. TriCore Reference Labs., the Tenth Circuit Court of Appeals concluded that the EEOC cannot require disclosure of general personnel information in response to a Charge that involves claims by a single party. Absent allegations in the Charge that suggest a pattern and practice of discrimination, the court held that information regarding other employees is not relevant to the EEOC’s investigation of the matter at hand. In other words, the agency must show some connection between the Charging party’s claims and the information requested.
If followed by other federal courts, this decision could put a stop to efforts by the EEOC to use a single party Charge as the basis for a “fishing expedition” to determine whether the agency might have a basis for a pattern and practice investigation. Last month, the U.S. Supreme Court heard arguments in a similar case that could determine the specific legal standard lower courts use to review EEOC subpoenas. For the time being, employers should carefully review EEOC Requests for Information, and only respond to questions that are relevant to the specific Charge at hand.