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eLABORate: EEOC "Spam" Gets a Green Light

September 29, 2014

Merriam-Webster Dictionary defines “spam” as an “unsolicited usually commercial email sent to a large number of addresses” or “a canned meat product.”  Another definition may now be “an aggressive investigative tactic of the Equal Employment Opportunity Commission (“EEOC”) which has been given a green light by the courts.”

On September 24, 2014, a U.S. District Court Judge in Washington, DC announced he will dismiss a lawsuit over the EEOC sending a blast of more than 1,300 emails to a company’s employees, requesting they supply information to the agency as part of an investigation into allegations of age discrimination.

The federal lawsuit, filed by construction equipment maker Case New Holland (“CNH”), alleged the EEOC unconstitutionally solicited or “trolled” the company’s employees to become class members in a potential age discrimination class action.  Prior to the email blitz, the company had cooperated with the EEOC’s investigative requests by producing ten of thousands of page of documents and hundreds of thousands of electronic documents. The company heard nothing more from the agency for more than a year and a half, until the incident that caused the company to sue the EEOC.

At 8:00 a.m. on June 5, 2013, the EEOC conducted a mass emailing to the business email addresses of 1330 CNH employees across the United States and Canada. Over 200 of the recipients were members of management. The email stated the EEOC was conducting “a federal investigation” and making “an official inquiry” into allegations that CNH discriminated against job applicants and employees, and contained a link to an online series of questions regarding alleged discrimination. It also asked for the employee’s birth date, address and telephone number. The EEOC’s online survey instructed CNH employees to “Please complete and submit this electronic questionnaire as soon as possible.”  The email had been sent without any advance notice to CNH and according to the lawsuit, the mass mailing disrupted CNH’s business operations at the start of the workday and communicated to employees they should cease their legitimate work duties and instead immediately respond to the agency’s questions. A significant concern was the company’s belief that the EEOC had deliberately cut the employer out of the investigatory process, and had solicited members of management, whose statements arguably could have bound the company.

CNH filed its lawsuit on August 1, 2013, alleging that the EEOC’s mass emailing: (1) was not authorized by any EEOC rule or regulation, (2) violated the federal Administrative Procedure Act, (3) constituted an unreasonable search and seizure in violation of the Fourth Amendment, (4) violated the takings clause of the Fifth Amendment, and (5) violated the EEOC’s own compliance manual, which requires that an employer be allowed to have a spokesman or attorney present during an interview of management employees, and that advance notice be given. The suit claimed the EEOC was engaged in bullying tactics to force companies into monetary settlements of questionable claims.

However, in his ruling announcing his plans to dismiss CNH’s lawsuit, U.S. District Judge Reggie B. Walton stated that the company lacked standing to bring the suit because it was not able to establish how it was injured by the EEOC’s investigatory tactic, other than vague allegations of business disruptions.  Judge Walton announced he would issue a written opinion dismissing the case within the next two months.  At this time, the company has not announced if it plans to appeal the ruling.  Although the EEOC had never before utilized email at this scale to try and identify alleged victims of discrimination, it had argued to the court that the tactic was clearly within the agency’s investigatory authority.

With the U.S. District Court giving the green light to the EEOC’s investigatory “spam”, at least for the time being, it appears highly likely that employers will be seeing much more of this tactic. From the EEOC’s perspective, it is cheaper and quicker than actually sending investigators to a workplace, and has the added benefit of being able to target thousands of potential plaintiffs/class members with the click of a mouse.  Also, as noted in CNH's lawsuit, it has the effect of allowing the EEOC to cut the employer out of the investigative process.