EEOC Has Broad Power To Subpoena Employer Records

Christopher Olmsted
July 7, 2009 — 1,745 views  

When the EEOC files an administrative charge of discrimination against an employer, it frequently will demand that company records be produced. If the company does not voluntarily comply, the EEOC may issue an administrative subpoena seeking to force production of the records.


The EEOC’s power to obtain records is broad. The scope of its power is illustrated in a recent Ninth Circuit case titled EEOC v. Federal Express. In that case, after an employee filed a discrimination charge against FedEx, the EEOC opened an investigation and requested documents and information about electronically stored records. But then the employee obtained a right to sue letter and filed a private lawsuit. FedEx objected to producing records to the EEOC.


The court ordered FedEx to comply with the EEOC subpoena. The ruling is summarized below:


1.      Requests After Right To Sue Allowed. FedEx objected to the EEOC’s record request because the charging employee had already received a right to sue letter and had filed a private lawsuit. The court held that the EEOC still had the right to obtain records.


The court read Title VII, the relevant regulations, and the EEOC’s interpretation of those regulations to mean that: (1) the EEOC’s investigative mandate is triggered by the filing

of a valid charge; (2) the EEOC may bring its own action or may issue a right-to-sue notice to the charging party; and (3) even though the EEOC normally terminates the processing of the charge when it issues the right-to-sue notice, it can, under limited circumstances, continue to investigate the allegations in the charge, which includes the authority to subpoena information relevant to that charge.


Here, the aggrieved employee filed a charge alleging personal discrimination and discrimination against other similarly situated African Americans and Latinos. The EEOC, pursuant to Merritt’s request, issued to him a right-to-sue notice. The EEOC decided, however, to continue investigating Merritt’s charge because it involved a

possible policy or pattern of discrimination affecting others. The court found no legal authority to suggest that the EEOC exceeded its authority in doing so.



2.      General Requests Allowed. FedEx objected to the EEOC’s request because it sought general employment files in order to help the EEOC draft future information requests, seeking evidence to a charge of systemic discrimination. The court held that the EEOC has the right to obtain general records even in the absence of a specific charge, in order to hunt for illegal conduct.


The court decided that broad requests regarding computer files are appropriate in the course of an investigation into policy or pattern discrimination. “The subpoena in this case asks FedEx only to identify any computerized files that it has or currently maintains. FedEx, the district court, and the EEOC all agree that that information is not necessarily relevant in an evidentiary sense. That is, the information sought is not itself evidence of discriminatory treatment in violation of Title VII. Rather, the information will help the EEOC craft additional information requests that may produce evidence of discriminatory treatment.”


“[I]dentification of the computerized personnel information . . . is directly relevant to its investigation . . . . Such data permits the Commission to better focus its investigation. [T]his information will enable the EEOC to perform its investigative function by allowing it to frame more specific requests which will limit the possibility that irrelevant or unnecessary material will be produced for the EEOC to review. The efficient search for relevant information is imperative in a case like this, where the Commission must investigate not one or two claims against the company, but nearly two dozen. Without this means of locating pertinent data, both the EEOC and the employer could be overwhelmed by the sheer quantity of information needed to address each claim treated individually.”


“To enable the EEOC to make informed decisions at each stage of the enforcement process, Congress has conferred upon it a broad right of access to relevant evidence. Given this broad grant of power, it can hardly be said that the EEOC plainly lacks jurisdiction. Because Congress granted the EEOC the authority to investigate (and nothing in Title VII divests the EEOC of that authority when a charging party files suit) and because the evidence requested by the EEOC is relevant and material to the investigation, the district court did not err in enforcing the EEOC’s administrative subpoena.”



The bottom line is that the EEOC has broad power to obtain company records. The power is not without limitation. An employer has the right to redress in court to seek a narrowing of the subpoena. For this reason and others, it is appropriate to consul with legal counsel before responding to an EEOC request. However, as seen in the FedEx case, courts will generally permit the EEOC to obtain records relevant to the scope of its investigation.


Christopher Olmsted


Christopher W. Olmsted is an attorney and shareholder with the San Diego law firm Barker Olmsted & Barnier, PLC. He advises clients regarding legal compliance with state and federal labor and employment law. Mr. Olmsted also represents businesses clients in state and federal employment law litigation, as well as in connection with agency enforcement actions. Mr. Olmsted can be reached at 619-682-4040 or [email protected] For additional articles, visit