By Joy P. Waltemath, J.D. Although the EEOC must obtain judicial review and approval before inspecting a private employer’s property without its consent, this approval need not always come in the form of an administrative warrant, a federal district court in Kentucky ruled. The process for court review set out by the EEOC’s regulatory scheme provides a nonconsenting employer with "safeguards roughly equivalent to those afforded under a traditional warrant procedure," concluded the court, finding that the agency’s subpoena seeking onsite access to a steel production facility was enforceable. But it limited the subpoena’s overbroad "examine the facility" language to areas of the facility that the agency inspector reasonably believes to be "relevant to the charges filed"—here, the Hot Rolling Department Shift Manager position (EEOC v. Nucor Steel Gallatin, Inc., April 28, 2016, Van Tatenhove, G.). In its investigation of an applicant’s claim that his job offer for shift manager was rescinded due to his record of a disability, the EEOC sent a request for information to which the steel company reluctantly provided the names of those involved in the recruiting and interview process. When the EEOC investigator communicated that his "next step" was to conduct an onsite visit and interviews, the company said no, although it would provide the individuals for interviews at an off-site location. The EEOC issued a subpoena; the company sought to revoke or modify it and, when the agency would not agree, informed the EEOC it would not allow access without a court order or valid warrant. The EEOC then sought a show cause order from the district court. Statutory authority to inspect. Addressing first the company’s claim, raised only in its final brief, that the EEOC lacks statutory authority under Title VII to conduct any on-site examination of commercial property, regardless of consent, the court pointed to the "EEOC’s long and untroubled history of conducting myriad on-site investigations of private commercial property." In addition, Title VII expressly provides that the Commission shall "have access to . . . any evidence of any person being investigated or proceeded against," which the court found to not be an ambiguous grant. The statute requires access to "any evidence" relevant to the claims charged, which makes it plain the EEOC may enter private commercial property to inspect relevant physical evidence. Necessity of administrative warrant. The Supreme Court has spoken to the authority of administrative agencies to conduct warrantless searches of private commercial property, noting that administrative processes must satisfy the Fourth Amendment via "a warrant or its equivalent." Although the Sixth Circuit has not expressly identified the criteria necessary to be "equivalent" to a traditional warrant, other courts have repeatedly recognized that some alternative procedures may be consistent with the Fourth Amendment. So the court compared the "probable cause" standard for issuing an administrative warrant with the pre-compliance review procedures in Title VII and its regulations (noting that a lesser probable cause showing is required than for a criminal warrant). To be "equivalent," the EEOC’s processes must permit a court to ensure that (1) its request for access flows from "specific evidence of an existing violation," and (2) the investigator’s search bears "an appropriate relationship to the violation alleged in the complaint." They were equivalent, concluded the court. The EEOC’s regulatory scheme provides comprehensive procedural safeguards for a company that refuses to obey a subpoena, and after reiterating the agency’s process, the court looked to its own role when the agency seeks to enforce a subpoena. Specifically, the EEOC cannot enforce a subpoena without obtaining approval from a federal district court, which a court will do only after determining that the inspection is within the Commission’s authority, procedurally sound, relevant to the specific charges filed, and not unduly burdensome. "These requirements closely track the inquiry made under a traditional warrant procedure," said the court, and it was unwilling to agree with the company that its own inquiry into the adequacy of the EEOC’s procedures was "somehow insufficient" than a traditional warrant procedure. Specific challenges to subpoena. Here, the employer’s arguments against the subpoena specifically boiled down to a "take-my-word-for-it-style defense," said the court. The company argued that on-site inspection was unnecessary and premature because the EEOC had not yet interviewed witnesses off-site, but even if it had conducted all off-site interviews, the agency could not reasonably resolve the applicant’s disability discrimination claims without performing its own investigation. There was an "overarching flaw" in many of the employer’s arguments, said the court—its presumption that the information it singularly chose to provide, and nothing more, was sufficient. Irrelevance. Citing Sixth Circuit precedent identifying six factors to consider in determining essential job functions, the employer argued that an onsite visit would be irrelevant. "Unconvincing," said the court, because at the very least, an onsite visit would help to determine the (1) amount of time spent performing the function, (2) consequences of not requiring the function to be performed, and (3) current work experience of incumbents in similar jobs. Overbreadth. But court did agree that subpoena, which required access "to conduct witness interviews, examine the facility, and obtain/request any additional information as it pertains to the Rolling Shift Manager position" was overbroad as to the nebulous "examine the facility" request; this did not mean, however, that EEOC had to "state with specificity" what it was seeking. Because the company refused to provide onsite access (thus controlling what information was available), the EEOC could not state with specificity every piece of information that might be relevant to its onsite investigation. However, the agency could only inspect areas of the facility that were reasonably believed to be "relevant to the charges filed"—focusing on evidence directly relevant to the Hot Rolling Department Shift Manager position. Undue burden. The court found the company’s undue burden argument was distorted. It argued it would take the investigator too long to understand the "essential functions of the shift manager position." The focus was not on the peculiarities of the position itself but how the presence of an investigator at the facility would actually impose an undue burden, which the employer did not explain. Since the investigator would be limited to evidence directly related to the Hot Rolling Department Shift Manager position (and whether it required only "hands-off" work, as the applicant claimed he had been told), the court not see how the mere presence of an investigator at the facility would impose a burden sufficiently severe to warrant the Commission’s wholesale exclusion from the property. Safety concerns. Assertions that facility access would raise "safety concerns" related to the "inherent dangers of the work environment and industrial equipment machinery," without more, were unconvincing to the court since the company failed to explain why they were so extraordinary as to warrant the EEOC’s total exclusion from the premises. Since the EEOC performs onsite investigations of all types of worksites every working day, the agency "is well-equipped to take reasonable precautions before inspecting facilities like this one," concluded the court, enforcing the EEOC’s subpoena.
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