It’s no secret to employers that the Equal Employment Opportunity Commission (EEOC) has taken a more provocative and confrontational approach to investigating and litigating claims of employment discrimination. But the EEOC’s treatment of Case New Holland, Inc., takes “pushing the envelope” to a new level. To make matters worse, a federal court has OK’d the agency’s tactics. 
The investigation
In March 2011, the EEOC’s Philadelphia district director informed Case that the agency was launching a nationwide investigation of the employer for possible violations of the Age Discrimination in Employment Act (ADEA). As part of that investigation, beginning in March and going through November 2011, the EEOC asked Case to produce records regarding the hiring, training, and employment status for all employees of it and its related entities. The agency’s requests were enormous. In November, Case and EEOC representatives met to sort out the pending data requests.
In January 2012, Case provided a mountain of data to the EEOC. According to the employer, it gave the EEOC at least 5,707 pages of “hard copy” documents and 600,000 electronic records, totaling 66,630 pages of documents. Case estimated that it gave the agency more than 600 megabytes of information.
And then nothing happened. It was all quiet . . . until June 5, 2013.
You’ve got mail
Case employees who reported to work on June 5 and checked their e-mail found a warm greeting from the EEOC. The agency sent e-mails to more than 1,000 employees’ business e-mail addresses around the country stating it was investigating accusations of employment discrimination against the employer. The e-mail didn’t disclose that the accusations were limited to age discrimination, and the EEOC didn’t advise the recipients that no finding of discrimination had been made.
The e-mail included an Internet link to a questionnaire that employees were directed to complete. The questionnaire asked the employees to include their contact information. From Case’s standpoint, the EEOC’s e-mail blast and questionnaire were misleading and unfair and were an improper attempt by the agency to generate more discrimination claims.
Court: No harm, no foul
Case filed a lawsuit against the EEOC in federal court. Case complained that in addition to being misleading and amounting to an improper solicitation of lawsuits, the agency’s mass e-mail and questionnaire sent to employees at work violated the U.S. Constitution, federal regulations, and the EEOC’s own compliance manual. Ready for the kicker? On September 14, 2014, the federal court dismissed the lawsuit, concluding Case couldn’t show any harm caused by the e-mail blast.
Buckle up
With court rulings such as this, the EEOC’s current trajectory of provocative and confrontational approaches to employment discrimination charges and investigations is likely to continue.
Charlie Plumb is an attorney with McAfee Taft, practicing in the firm’s Tulsa, Oklahoma, office. He may be contacted at charlie.plumb@mcafeetaft.com.
Under the current administration’s guidance, the Constitution is under constant assault. And it’s becoming more and more rare for the judicial system to lean on the intent of our forefathers. When they’re not busy making law, without mandate, these two branches support only each other’s most liberal leanings. In the meantime, there’s less and less room for the Congress, and the citizenry in this brave new world. Hence, the election that took place yesterday. Hopefully, we can bring these dogs to heal. And guys, I loathe the Republican Party, but we still don’t have a viable third choice.