The Witch: I’m not a witch! I’m not a witch!
Sir Bedevere: But you are dressed as one
The Witch: *They* dressed me up like this!
Crowd: We didn’t! We didn’t…
The Witch: And this isn’t my nose. It’s a false one.
Sir Bedevere: [lifts up her false nose] Well?
Peasant 1: Well, we did do the nose.
Sir Bedevere: The nose?
Peasant 1: And the hat, but she is a witch!
Crowd: Yeah! Burn her! Burn her!
How wide of a net is the EEOC entitled to cast when issuing a subpoena for documents during an investigation? According to EEOC v. United Parcel Service, decided earlier this month by the 6th Circuit, the answer is a lot wider than you’d like.
Sinisa Matovski, a disabled operations manager for UPS, filed an EEOC charge claiming that UPS discriminated and retaliated against him in violation of the ADA by publishing confidential medical information about him and other employees on its intranet page. During the EEOC’s investigation, it issued a subpoena requesting from UPS information about how it stored and disclosed all employee medical information. Specifically, the EEOC sought the following two broad categories of documents:
- UPS’s internal injury and accident report, from 2013 – 2015, which includes “the nature and location of the injury and accident, the injury type, whether the injury or accident is an OSHA type event, the District of the employee, business unit of the employee, and when not identified as a privacy case, information such as the employee’s name, and employee identification number.”
- UPS’s “privacy case” criteria, and all documents regarding its implementation and creation.
Once an adequate charge has been issued, the EEOC has authority to serve subpoenas to gain access to any evidence of any person being investigated or proceeded against that relates to unlawful employment practices and is relevant to the charge under investigation. …
Matovski claims that UPS violated the ADA’s confidentiality provision by publishing his request for medical leave on “on the company’s Health and Safety intranet site.” He also notes in his amended charge that “all other employees subject to the Health and Safety incident action/reports have had their confidentiality breached in the same manner as me.” Matovski’s charge thus directly implicates the databases that UPS uses to store and potentially disclose employee medical information. The district court did not abuse its discretion in finding such reports relevant to Matovski’s charge. …
Moreover, the EEOC is entitled to evidence that shows a pattern of discrimination other than the specific instance of discrimination described in the charge.
It should come as no surprise that the EEOC conducts its investigations with blinders off. It is always on the lookout for patterns and practices of systemic discrimination. Every discrete charge of discrimination lodged by a single employee is an opportunity for the EEOC to look for its witch. Employers should not let their guards down and assume that the investigation of one employee’s charge is limited to that employee and that charge. If there are broader problems, the EEOC will find them, or paper you with subpoenas trying. And, if that happens, courts like the 6th Circuit may not be of much help.
