Q I am an HR manager. My company just received notice of a charge of discrimination from the Equal Employment Opportunity Commission (EEOC) along with a request for information (RFI) seeking sensitive personnel data about several other employees at the company. Can you advise me about the best way to respond?
A Receiving an EEOC charge can be unnerving, especially when it’s accompanied by an RFI seeking voluminous amounts of confidential information about other employees. While it’s important to be responsive and cooperative, you also have the right to object to broad requests or negotiate the scope of the requested information with the EEOC investigator. Let’s examine some of the steps you should take.
Initial steps
First, identify the deadlines for responding to the individual charge of discrimination, and put them on your calendar. It’s important to respond to the EEOC in a timely manner. Notify the appropriate people in your company that a charge has been filed with the EEOC and you have received an RFI.
Next, consider who should investigate the allegations, whether it’s you and your staff in HR, an in-house attorney, outside counsel, or other outside consultants. Identify key players to be interviewed, and ensure that their documents and e-mails are gathered and preserved. Make sure interviews conclude with a reminder of your company’s antiretaliation policy and a request that witnesses keep the information discussed during the interviews confidential.
Responding to the Charge and RFI
You’ll have to submit a position statement in response to the EEOC charge. This is your chance to introduce your company, your antidiscrimination policies, and your side of the story. Note that the response will be based solely on the allegations made in the charge. You should request an opportunity to respond to any additional information gathered by the EEOC.
When you analyze the additional personnel information requested by the EEOC, be aware that the agency now shares employers’ responses with charging parties. If you’re providing information about other employees, make sure to designate medical, financial, and other sensitive information as confidential and produce it separately. If the confidential information being sought appears unrelated to the individual charge of discrimination, consider talking to the EEOC investigator about narrowing the scope of the request.
Be cooperative but resolute in seeking to narrow the scope of the information. For example, a request for sensitive information about all personnel employed by an organization nationwide can be challenged on the basis that it’s overly broad, burdensome (expensive and time-consuming), and not related to the charge of discrimination. The EEOC investigator may be satisfied with a subset of the information (e.g., employees with the same job titles at the same store). Consider conferring with legal counsel before challenging the scope of the RFI to determine how best to respond to a potential subpoena.
If You Get Subpoenaed
If you receive a subpoena, you must determine quickly whether you wish to object because the EEOC provides only five business days to do so. Keep in mind that the costs associated with legally challenging the subpoena could be much higher than the cost of simply providing the information. However, don’t be afraid to object if it’s warranted, especially when it appears that the EEOC is trying to create a class action out of a single claim of discrimination.
Although the EEOC has broad powers to investigate, its authority is limited. Last year, the 10th Circuit rejected the agency’s subpoena for a list of all pregnant women at one employer irrespective of whether they had ever requested an accommodation because it had no connection to the single charge of discrimination. While employer challenges are rare, the 10th Circuit has rejected subpoenas seeking nationwide information in response to a local discrimination charge as well as information about employees who didn’t have the same experience as the charging employee.
Bottom Line
Responding to an EEOC charge in a cooperative and reasonable manner, even when the agency’s requests appear intrusive and burdensome, will make the process more manageable for both your company and the EEOC.
Sarah K. Downey is an attorney with Jackson Loman Stanford & Downey, P.C., in Albuquerque, New Mexico. You can reach her at sarah@jacksonlomanlaw.com.