Employment Law Daily EEOC may inspect, photograph work area to which rejected applicant would be assigned
Wednesday, March 21, 2018

EEOC may inspect, photograph work area to which rejected applicant would be assigned

By Lorene D. Park, J.D.

In a religious discrimination suit by the EEOC on behalf of a job applicant rejected because her religion precluded her from wearing pants, the agency was granted in part its motion to compel the defendant to allow entry, inspection, and videotaping of the area to which she would have been assigned. The federal district court in South Carolina found the information relevant to the defense that allowing the applicant to wear a skirt was too dangerous because of the machinery and production processes at the facility. However, given safety and privacy concerns, the court narrowed the scope of the agency’s request and allowed only for two counsel for the EEOC and a legal photographer to inspect and take still photos of the washer inspection area for 60 minutes on a date of Akebono’s choosing (EEOC v. Akebono Brake Corp., March 15, 2018, Hodges, S.).

Wearing skirt to accommodate religion dangerous? According to the EEOC, a job applicant was hired by a staffing agency to work with Akebono Brake, which unlawfully revoked the offer after being informed of the applicant’s religious belief prohibiting her from wearing pants. As a defense, Akebono argued her request for the accommodation of wearing skirts in lieu of pants at the facility was unreasonable due to the nature of Akebono’s business and specifically the work performed at that location, and the accommodation would have created an undue hardship. According to Akebono, “[i]ndividuals wearing loose clothing present a safety risk as their clothing may get caught in the machinery, causing serious injury to the individual.”

EEOC’s request to inspect, videotape. At issue here was the parties dispute over the EEOC’s Rule 34(a) request for entry and inspection, to which Akebono objected on several grounds, including that the request was overly broad and unduly burdensome. The EEOC moved to compel requesting to inspect and videotape: (1) areas of the facility where “the position described by [Akebono Safety Manager] in his deposition as ‘washer inspection’ is performed”; (2) areas where employees of the staffing agency were placed to perform general assembly positions during the period from October 28 through October 31, 2014; and (3) all walkways to and from the locations described in (1) and (2).

Relevancy to safety/undue hardship defense. With respect to relevancy, the EEOC argued that Akebono put the condition and nature of its facility and operations at issue by asserting a safety/undue hardship defense. The agency asserted that deposition testimony of Akebono’s employees suggested walkways, conveyor belts, machine corners, and other physical and spatial elements of the facility presented a safety risk to an individual wearing a skirt. Thus, argued the EEOC, it should be allowed to inspect the facility to assess the validity of these claims.

Akebono, on the other hand, argued that because the record contains no evidence as to the length, type, or material of the skirt that the job applicant proposed to wear in lieu of pants, any conclusions drawn from the EEOC’s inspection of its facility would be highly speculative. It further asserted that the agency was trying to undertake a “fishing expedition” for evidence.

Agreeing with the EEOC, the court explained that Akebono could have asked about the length, type, and material of her skirts when it deposed the applicant and it would be unreasonable to deny the EEOC’s request for entry and inspection based on a lack of information the company could have readily obtained. Moreover, the information was relevant to the employer’s defense that the physical and spatial elements of its facility presented a safety risk that could not be mitigated with reasonable accommodations of the applicant’s need to wear a skirt.

Proportionality of request. That said, the court still had to determine whether the EEOC’s request was proportional to the needs of the case, taking into account the importance of the issues at stake, the amount in controversy, the parties’ access to relevant information, the parties’ resources, the importance of the discovery to resolving the issues, and whether the burden or expense of the proposed discovery outweighed its likely benefit.

The importance of the issues at stake weighed in the EEOC’s favor, though the amount in controversy weighed in favor of Akebono, given the lack of information supporting the agency’s assertion that it was likely to recover compensatory and punitive damages up to the statutory cap of $300,000. The parties’ relative access to the information weighed in the EEOC’s favor, given its need to evaluate the validity of the company’s assertion that accommodating the job applicant’s attire would present a safety risk. However, given the conflicting testimony regarding which position the applicant would have worked, it was unclear to the court whether the information sought would significantly add to the discovery already conducted, so the importance of the discovery weighed equally to both parties.

Concerning whether the burden or expense outweighed the benefit of the discovery, Akebono argued that the EEOC’s proposed inspection and videotaping was overly broad, presented safety and privacy concerns, and would disrupt its business. It asked that to the extent the agency’s request was granted, the inspection be limited to the “washer inspector” area and the use of still photography. The EEOC countered that the HR manager testified that “a lot of visitors” came through each week, and still photos do not capture the movement of the machines.

Having considered both sides, the court found the scope of a request to let an agency visit and videotape manufacturing process was a greater burden than ordinary visitors with respect to safety, disruption, and privacy. The court therefore granted the EEOC’s request in more narrowly defined terms, allowing two counsel for the EEOC and a legal photographer to inspect and take still photos of the washer inspection area for 60 minutes on a date of Akebono’s choosing.

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