EEOC Can Enter Company Premises Without Consent Under Title VII

By Jeffrey Rhodes May 25, 2016
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A steel company could not bar the Equal Employment Opportunity Commission (EEOC) from entering its property and investigating a hiring discrimination claim without a warrant, the U.S. District Court for the Eastern District of Kentucky ruled.

Nucor Steel Gallatin Inc., a manufacturer of steel, had an initial interview with a job applicant, Edward Bennett, for the position of hot rolling department shift manager—which Bennett understood would require only “hands off” work. He was not selected for the position. Bennett then filed a charge of employment discrimination with the EEOC, claiming he was not selected because Gallatin discovered his record of disability.

The EEOC issued a request for information to the company. After resistance by Gallatin, the commission obtained a list of the persons involved in Bennett's recruiting and interview process. The EEOC investigator then e-mailed Gallatin and stated that “the next step in my investigation is to conduct an onsite visit and conduct interviews with individuals that I think will have relevant information to aid in my investigation.” Gallatin responded that it did not believe that coming onsite was necessary or relevant to the investigation. Instead, Gallatin offered to provide the individuals requested for interviews at the EEOC office or at an offsite location. Soon thereafter, the EEOC issued a subpoena requiring Gallatin to permit onsite access “to conduct witness interviews, examine the facility, and obtain/request any additional information as it pertains to the rolling shift manager position.”

On May 5, 2015, Gallatin filed a petition to revoke and or modify the subpoena with the EEOC, claiming the “onsite interviews are not relevant or material and place [an] unnecessary burden on the employer and require a judicial warrant.” The commission denied Gallatin's petition in June 2015, directing Gallatin to permit an onsite examination of its facilities within 10 days of receipt of its determination. Gallatin wrote a letter to the EEOC stating that it would not consent to an onsite visit without a court order or a valid warrant. The commission then petitioned the U.S. District Court for the Eastern District of Kentucky to order the company to show cause why it should not be compelled to comply with the subpoena the EEOC issued upon it.

Gallatin argued that an administrative agency like the EEOC could not enter into the premises of a private company without a judicial warrant. The company cited the language of Title VII of the Civil Rights Act of 1964, which states that the EEOC shall "have access to, for the purposes of examination, and the right to copy any evidence of any person investigated or proceeded against" (42 U.S.C. Section 2000e-8(a)). Gallatin claimed that the language did not expressly afford a right of entry to the EEOC, and that Congress never intended for the EEOC to have such a statutory right.

The court found that a 1978 decision of the U.S. Supreme Court, Marshall v. Barlow’s Inc., described the powers of an administrative agency to enter onto company property without consent. In that decision, the Supreme Court determined that the Occupational Safety and Health Act of 1980 was unconstitutional to the extent that it allowed the Secretary of Labor to conduct warrantless, nonconsensual searches of private commercial property.

However, the Supreme Court decided that this did not mean that all statutes that allowed for warrantless searches by regulatory agencies were constitutionally infirm. Rather, the Supreme Court found that the reasonableness of a warrantless search depends upon the specific enforcement needs and privacy guarantees of each statute. The Supreme Court favorably referenced statutes that contemplate the resort to federal court enforcement once entry is refused. The Supreme Court also recognized that, in some situations, a court order for inspection could function as the equivalent of a warrant.

The court also considered many decisions by other federal courts throughout the country that have recognized that a subpoena by an administrative agency could be upheld by a court if reasonably limited to the scope of the alleged violation and if it prevents unnecessary review of other private information.

The court thus limited the subpoena to inspection of evidence directly related to the hot rolling department shift manager position and its associated responsibilities. The court found that the investigator could not generally or indiscriminately search the facility for evidence relevant to Bennett's claim, but could only inspect areas that he or she reasonably believed would provide evidence relevant to the position.

EEOC v. Nucor Steel Gallatin Inc., E.D. Ky., No. 15-53-GFVT (April 28, 2016).

Professional Pointer: Like several other administrative agencies, the EEOC can demand access to a company’s premises to investigate claims of misconduct and to verify that required records are being kept. Nevertheless, the powers of the EEOC in this regard are not unlimited. If the investigator seems to be overstepping his or her bounds, a company can require the agency to obtain a court order and can challenge the scope of the agency’s request for inspection.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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