By Lorene D. Park, J.D. Emphasizing that a district court plays a “limited” role in enforcing EEOC subpoenas—looking not to the merits of the claim but to the agency’s jurisdiction to investigate—the Fourth Circuit held that a district court erred in refusing to enforce a subpoena based on the charging party’s undocumented status, which the lower court found precluded the employee from asserting a Title VII claim. Judge Niemeyer concurred in the result, expressing that it was not clear, given the employee’s undocumented status, that the jurisdictional prerequisite of a plausibly alleged “unlawful employment practice” was met, but finding that the record suggested a pattern of unlawful practices against those authorized to work in the U.S., even if the employee here was not (EEOC v. Maritime Autowash, Inc., April 25, 2016, Wilkinson, J., III). Unauthorized employees. Hired by a carwash in May 2012, the employee was not authorized to work in the U.S. The parties disputed the facts of his hire and termination, but the employer claimed he was hired under a different name. In May 2013, the employer was informed by the Department of Homeland Security (DHS) that he had no work authorization, so it terminated him under that name and hired him under “Elmer Escalante” the same month. The employee claimed he was hired under “Escalante,” his legal name, but a manager said it did not match his Social Security number, so he should obtain documents with a different name, which he did. Following the DHS inspection, the employer allegedly offered unauthorized Hispanic employees a $150 “bonus” to acquire new documentation and names. The employee then obtained a Social Security number corresponding to “Elmer Escalante” and was rehired. EEOC charge. In July, the employee and other Hispanic workers complained to the employer of discrimination and all were fired. The employee filed EEOC charges of national origin discrimination, identifying the relevant period as May 2012 through July 2013. The charge detailed unequal conditions including longer hours, shorter breaks, and lower wages. Employer’s denials. Denying the allegations, the employer claimed the employee was fired for failing to appear for a shift. It claimed that “Elmer Escalante” only worked for two months, May to July 2013. In a footnote, the employer stated that he had worked there before, under the assumed name, and said it fired that individual in May 2013 due to the DHS investigation. EEOC seeks information. The EEOC served the employer with a request for personnel files, wage records, and other employment data related to Escalante, the other charging parties, and similarly situated employees from January 1, 2012, to the time of the request. Refusing to provide records for any Hispanic employees other than the employee, the employer again insisted that he, as opposed to any individual with his assumed name, was hired in May 2013 and limited its response to the two months it claimed to have employed Escalante. Faced with the incomplete response, the EEOC issued a subpoena focusing only on Escalante’s charges. The employer refused and the agency sought enforcement. The district court denied the application, relying on a Fourth Circuit holding that a plaintiff is entitled to Title VII remedies only upon a showing that the applicant was “qualified for employment,” which included being “authorized for employment in the United States at the time in question.” The EEOC appealed. Subpoena enforced. Reversing, the Fourth Circuit first emphasized that it was not addressing defenses that might be raised to the subpoena, such as undue burden or viability of the claims. The only question at this stage was whether the EEOC’s subpoena, designed to investigate Escalante’s Title VII charges, was enforceable. It was. The appeals court analyzed Title VII’s provisions, including the agency’s power to investigate charges and to access any evidence relating to unlawful practices, including the authority to issue subpoenas. The district court plays only a “limited” role in enforcing the subpoenas, looking not to the merits but to the agency’s jurisdiction to investigate. Here, the agency had jurisdiction. Undocumented status does not affect EEOC jurisdiction. It was undisputed that Escalante had no valid work authorization when hired, but the parties disagreed on how his undocumented status affected the EEOC’s authority to investigate. The employer argued he was not qualified for employment and thus lacked a claim under Title VII. In the court’s view, though, Title VII uses expansive terms and allows “any person claiming to be aggrieved” to file EEOC charges—nothing explicitly bars undocumented workers from filing complaints. Thus, whether under the name Escalante or the assumed name, the charging party worked at the carwash, and his discrimination charge rested squarely on a protected ground. The EEOC’s investigation was therefore arguably related to its statutorily conferred authority. The employer’s argument that those lacking work authorization have no Title VII claim was “backwards,” said the appeals court. A court does not address the cause of action or remedies when reviewing an agency subpoena. Nor did the employer here contest the employee’s compliance with prerequisites such as filing a charge in “writing under oath or affirmation.” It focused solely on his undocumented status, and that challenge failed. Concurring opinion. Judge Niemeyer agreed with the outcome, but wrote separately to express that, when the person to whom a subpoena is issued raises a substantial question on possible abuse of process, the agency must “show that the exercise of its jurisdiction is supported by reasonable cause.” Here, the employer raised such a question and, in Judge Niemeyer’s view, it was not immediately clear that the jurisdictional prerequisite of a plausibly alleged “unlawful employment practice” was satisfied. That said, the record suggested that the employer engaged in a pattern or practice that adversely affected employees authorized to work in the U.S., even if Escalante was not.
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