By Marjorie Johnson, J.D. The EEOC was entitled to employee and applicant information regarding race, even though the two claimants whose EEOC charges it was investigating only alleged sex discrimination, a federal district court in Illinois ruled, finding the information might shed light on possible discriminatory hiring processes. Ordering the employer to respond to the EEOC’s subpoena, the court also rejected its assertion that the agency’s request was overly broad since it covered more years than the employer was required to keep records, or that it would place an undue burden on its sole local HR employee. The court found the relevance and probative value of the information sought substantially outweighed the financial and resource burden, particularly since the HR office could step in to assist or hire temporary staff to do so (EEOC v. American Coal Co., April 26, 2016, Yandle, S.). The EEOC filed its “Application for Order to Show Cause Why a Subpoena Should not be Enforced” against the American Coal Company after the company refused to respond to a subpoena it issued as part of its investigation into two female claimants’ failure-to-hire charges. It sought employee and applicant information, including gender and race, for an approximately four-year period. American Coal argued that the employee/applicant race information was irrelevant because the discrimination charges only involved gender and that the four-year period was too long. It also asserted that requiring the mine’s sole HR employee to respond would pose an undue burden since it could divert her from other necessary company tasks. Four years okay. The EEOC’s subpoena was not overly broad and the information sought was relevant, ruled the court. The primary claimant, whom American Coal declined to hire on March 17, 2014, alleged in her initial and amended EEOC charges that she was discriminated against on the basis of her sex. The EEOC’s subpoena requested information concerning employees that had worked at and/or applied to work at American Coal from January 1, 2012, through the present. Although such a period was longer than the one-year file retention requirement set forth in EEOC regulations, it was not so broad as to run afoul of the agency’s statutory authority, ruled the court. Must provide race info, too. The court also ordered American Coal to respond to the EEOC’s requests to identify the race of its employees and job applicants, rejecting the company’s assertion that such information was irrelevant since the charges only alleged gender bias. Although it relied upon a Fifth Circuit decision, the district court pointed out that it was not bound by Fifth Circuit precedent. Moreover, the Seventh Circuit has held that “evidence concerning employment practices other than those specifically charged by complainants” may be relevant. In the instant action, information pertaining to the race of applicants and employees might shed light on possible discriminatory hiring practices and thereby, lead to the discovery of admissible evidence. Accordingly, the requested information satisfied the requisite “generous” relevancy standards afforded to the EEOC. Not unduly burdensome. Although there is no bright line test for determining whether a subpoena is unduly burdensome, courts generally balance the “likely relevance of the requested material to the investigation” against the personnel or financial burden to the employer, noted the court. A subpoena will then be found to be unduly burdensome if the burden of production substantially outweighs the probative value of the requested information, or if compliance would threaten the normal operation of the respondent’s business. Here, American Coal asserted that it would need to expend 250 labor hours to respond to Request 2 and a similar amount of time for Requests 3-5. It also complained that this burden would divert their sole HR employee from other necessary company tasks. However it acknowledged that its corporate HR office in Ohio managed part of its hiring process. Other than the fact that its employment records were kept in paper format in southern Illinois, it provided no reason as to why its corporate HR department could not assist in responding to the subpoena or why it could not hire temporary staff to assist. While the court recognized that responding to the subpoena would impose a financial and resource burden on the company, the relevance and probative value of the information sought to the investigation substantially outweighed that burden.
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