The Tenth Circuit’s decision gives employers faced with EEOC subpoena enforcement actions at least one recent appellate decision to examine and potentially rely on in defending their refusal to acquiesce in broad information requests. Nevertheless, the decision should be examined carefully in light of its own caveats and the broad language of other appellate courts that have enforced EEOC subpoenas, to determine whether it can be applied successfully to a particular fact situation. Despite the success of BNSF in this instance, the run of appellate cases has not been favorable to employers fighting subpoenas, and EEOC will be unlikely to read this decision as other than limited to its facts. Indeed, with some minor changes in the facts—a statewide subpoena or the existence of a Commissioner’s charge—the Tenth Circuit suggested the result may have been different. Thus, employers should be cautious about breathing too heavy a sigh of relief from this decision, and should continue to focus on evaluating their employment practices so that if and when they do get hit with a request for broad information, they have positive information to provide.
Phelps Dunbar Attorneys Reed Russell and Erin Malone also wrote an article in April of 2011 on EEOC subpoenas for BNA’s Employment Law Discrimination Report. Please click here to read their article.
Inquiries concerning topics addressed in this issue of the eLABORate may be directed to the contributing editor listed below or any of the members of the Phelps Dunbar Labor and Employment practice group.