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The Equal Employment Opportunity Commission (EEOC) can validly subpoena a national temporary staffing agency to obtain client names and employee contact information at 62 of its offices as part of an age discrimination inquiry, the 7th U.S. Circuit Court of Appeals ruled.
Aerotek Inc. is a staffing agency that supplies temporary workers to companies with over 200 offices throughout the United States. In August 2013, the EEOC began investigating Aerotek’s compliance with the Age Discrimination in Employment Act. The EEOC served a subpoena on Aerotek for the period from Jan. 1, 2009, to the present, requesting: 1) information about all persons whom Aerotek referred from its Illinois facilities for employment at Aerotek’s clients; 2) information regarding all job requests by clients of Aerotek nationwide; 3) information about persons hired into internal positions at Aerotek’s Illinois facilities; and 4) documents related to Aerotek’s analysis of its workforce. Aerotek partially complied with the subpoena, producing some of the information sought in a database.
Aerotek’s response revealed hundreds of discriminatory requests for temporary workers by clients at 62 of Aerotek’s offices. One client submitted a job request to Aerotek stating that its employees were in their 20s and that “a person in their 40s or 50s would not be a cultural fit.” Another client requested “young entergetic [sic] guys with some sports knowledge and good attention to detail.” Following its review of the information, the EEOC subpoenaed information about the temporary workers provided to company clients, including their names, dates of birth, contact information and the clients to whom they were assigned. Aerotek responded with a redacted database that provided information in a generalized form but omitted the names of clients and the contact information for temporary workers. When the EEOC asked for the omitted data, Aerotek refused to produce it until the EEOC identified which specific clients and workers it intended to contact.
The EEOC then issued a subpoena seeking client names and contact information for workers for the 62 facilities where it had identified discriminatory requests. Aerotek refused to comply with the subpoena and the EEOC sought enforcement from the district court, which ordered Aerotek to comply. Aerotek produced the names of the workers and their contact information but did not produce client names. Aerotek then filed a motion for modification of the court’s order, and filed a motion for stay. When these efforts were unavailing, Aerotek produced the requested client information to the EEOC, including the names of over 22,000 clients, but filed an appeal to try to force the EEOC to return that information.
On appeal, Aerotek claimed that the subpoena was unnecessarily disruptive and disproportionate to the few hundred problematic job requests that the EEOC had found in its initial review. Thus the information was not relevant to the investigation, but could only be part of a “fishing expedition” by the EEOC to review Aerotek’s employment practices generally. The 7th Circuit found, however, that the EEOC’s broad subpoena powers were not limited to investigating individual claims of discrimination, but that the EEOC had the general power “to make investigations and require the keeping of records necessary or appropriate for the administration” of the federal civil rights statute. Thus, because the subpoena was “within the authority of the agency … and the information sought is reasonably relevant” to its inquiry, the 7th Circuit agreed with the EEOC and enforced the subpoena against Aerotek.
EEOC v. Aerotek, Inc., 7th Cir., No. 15-1690 (Mar. 4, 2016).
Professional Pointer: The EEOC has broad investigative and enforcement powers that entitle it to review employers’ compliance with the federal civil rights laws, even if no employee claims discrimination. Employers should regularly review internal compliance with the federal civil rights laws to try to avoid an EEOC review that may threaten the privacy of their clients and employees.
Jeffrey L. Rhodes is an attorney with Doumar Martin PLLC in Arlington, Va.
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