No IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

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1 No IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Equal Employment Opportunity Commission, Petitioner-Appellee, v. Aerotek, Inc., Respondent-Appellant. Appeal from the United States District Court For the Northern District of Illinois, Eastern Division Case No. 1:10-cv The Honorable Judge Sharon Johnson Coleman BRIEF AMICUS CURIAE OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL IN SUPPORT OF RESPONDENT-APPELLANT AND IN SUPPORT OF REVERSAL Rae T. Vann NORRIS, TYSSE, LAMPLEY & LAKIS, LLP 1501 M Street, N.W., Suite 400 Washington, DC (202) rvann@ntll.com Attorneys for Amicus Curiae Equal Employment Advisory Council

2 FEDERAL RULE 29(c)(5) STATEMENT No counsel for a party authored this brief in whole or in part; No party or counsel for a party contributed money that was intended to fund the preparation or submission of this brief; and No person other than amicus curiae, its members or its counsel, contributed money that was intended to fund the preparation or submission of this brief. Respectfully submitted, s/ Rae T. Vann Rae T. Vann NORRIS, TYSSE, LAMPLEY & LAKIS, LLP 1501 M Street, N.W., Suite 400 Washington, DC (202) rvann@ntll.com Attorneys for Amicus Curiae Equal Employment Advisory Council

3 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTEREST OF THE AMICUS CURIAE... 1 STATEMENT OF THE CASE... 3 SUMMARY OF ARGUMENT... 5 ARGUMENT... 7 I. AN EEOC INVESTIGATIVE SUBPOENA DEMANDING INFORMATION ABOUT EMPLOYMENT PRACTICES BEYOND THE SCOPE OF REASONABLE INVESTIGATION OF THE FILED CHARGE IS OVERBROAD AND MUST BE DENIED... 7 A. The EEOC May Not Enforce An Administrative Subpoena That Is Not Predicated Upon A Valid Charge Of Discrimination... 7 B. The EEOC s Investigative Authority Under Title VII Is Not Plenary; It Is Limited To Investigation Of Issues Relevant To The Claims Of The Charging Party II. AUTHORIZING THE EEOC S TACTICS IN THIS CASE WILL ONLY ENCOURAGE MORE WIDESPREAD INVESTIGATIVE AND LITIGATION ABUSES, PARTICULARLY AGAINST LARGE EMPLOYERS CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE i

4 TABLE OF AUTHORITIES FEDERAL CASES Ameritech Benefit Plan Committee v. Communication Workers of America, 220 F.3d 814 (7th Cir. 2000)... 2 EEOC v. Bailey Co., 563 F.2d 439 (6th Cir. 1977)... 9, 10, 19 EEOC v. Burlington Northern Santa Fe Railroad, 2012 U.S. App. LEXIS 3902 (10th Cir. Feb. 27, 2012) EEOC v. City of Milwaukee, 919 F. Supp (E.D. Wis. 1996) EEOC v. Ford Motor Credit Co., 26 F.3d 44 (6th Cir. 1994) EEOC v. General Electric Co., 532 F.2d 359 (4th Cir. 1976)... 5 EEOC v. Kronos, Inc., 620 F.3d 287 (3d Cir. 2010) EEOC v. Packard Electric Division, 569 F.2d 315 (5th Cir. 1978) EEOC v. Randstad U.S., L.P., 765 F. Supp. 2d 734 (D. Md. 2011) EEOC v. Shell Oil Co., 466 U.S. 54 (1984)... passim EEOC v. Southern Farm Bureau Casualty Insurance Co., 271 F.3d 209 (5th Cir. 2001)... 13, 18 EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002)... 5, 12, 18 EEOC v. University of Pennsylvania, 493 U.S. 182 (1990)... 8 General Insurance Co. v. EEOC, 491 F.2d 133 (9th Cir. 1974) General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147 (1982) Joslin Dry Goods Co. v. EEOC, 483 F.2d 178 (10th Cir. 1973)... 12, 13 Kyles v. J.K. Guardian Security Services, Inc., 222 F.3d 289 (7th Cir. 2000)... 2 Moranski v. General Motors Corp., 433 F.3d 537 (7th Cir. 2005)... 2 New Process Steel, L.P. v. NLRB, 560 U.S., 130 S. Ct (2010)... 4 ii

5 Ryan v. CFTC, 125 F.3d 1062 (7th Cir. 1997)... 1 FEDERAL STATUTES Age Discrimination in Employment Act, 29 U.S.C. 621 et seq Americans with Disabilities Act, 42 U.S.C et seq Labor Management Relations Act, 29 U.S.C. 141 et seq U.S.C. 161(1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.... 1, 7, 10, U.S.C. 2000e U.S.C. 2000e-5(b) U.S.C. 2000e U.S.C. 2000e-8(a)... 5, 6, U.S.C. 2000e REGULATIONS 29 C.F.R C.F.R (a)(3) C.F.R (a)... 8 OTHER AUTHORITIES Donald R. Livingston, EEOC Litigation and Charge Resolution (BNA 2005) EEOC Compliance Manual (1988 & Supp. 2012) EEOC Compliance Manual 602.4(a) (1988 & Supp. 2012)... 14, 15 iii

6 EEOC Compliance Manual 602.4(b) (1988 & Supp. 2012) EEOC Compliance Manual, Investigative Procedures, 25.7 (1987 & Supp. 2012) 18 United States EEOC Strategic Plan for Fiscal Years iv

7 The Equal Employment Advisory Council respectfully submits this brief amicus curiae contingent on the granting of the accompanying Motion for Leave. The brief urges this Court to reverse the decision below and thus supports the position of Respondent-Appellant. INTEREST OF THE AMICUS CURIAE The Equal Employment Advisory Council (EEAC) is a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of employment discrimination. Its membership includes approximately 300 of the nation s largest private sector companies, collectively providing employment to roughly 20 million people throughout the United States. They all are employers subject to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.; the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq.; the Americans with Disabilities Act, 42 U.S.C et seq., and other antidiscrimination laws. As employers, and as potential defendants to Title VII discrimination claims, EEAC s members have a direct and ongoing interest in the issues presented in this appeal, which concern the authority of the Equal Employment Opportunity Commission (EEOC) to compel the production of evidence that is irrelevant to resolution of the specific charge under investigation. As a national representative of large employers, EEAC has perspective and experience that can help the Court assess issues of law and public policy that have been raised in this case, beyond the help that the lawyers for the parties can provide. Cf. Ryan v. CFTC, 125 F.3d 1062, 1063 (7th Cir. 1997).

8 Accordingly, EEAC seeks to bring these countervailing policy considerations to the Court s attention and assist the Court in putting the arguments of Petitioner- Appellee into proper perspective. Mindful of this Court s admonitions in Ryan, EEAC s amicus brief does not rehash legal arguments addressed in the parties briefs. Rather, it offers observations and perspectives on the issues, based on the collective experience of EEAC s member companies. For example, EEAC s brief explains that the EEOC s actions in this case not only exceed its statutory authority, but they also undermine effective enforcement of employment nondiscrimination laws by diverting valuable resources from investigating actual, live charges to pursuing unbridled, fishing expeditions in search of the big systemic case. It observes that there has been a steady shift in EEOC policy towards incentivizing staff to find and establish charges with broadbased, systemic implications, and that such a policy has served only to increase the agency s use of fantastically broad and irrelevant investigative subpoenas, to the detriment of employer-respondents as a whole, as well as to individual charging parties. Since 1976, EEAC has participated as amicus curiae in over 640 cases before the United States Supreme Court, this Court 1, and other federal courts of appeals, many of which have involved Title VII questions. Because of its experience in these 1 See, e.g., McReynolds v. Merrill Lynch & Co., No (7th Cir.) (motion granted Oct. 12, 2011); Moranski v. Gen. Motors Corp., 433 F.3d 537 (7th Cir. 2005); Kyles v. J.K. Guardian Sec. Servs., Inc., 222 F.3d 289 (7th Cir. 2000); Ameritech Benefit Plan Comm. v. Commun. Workers of Am., 220 F.3d 814 (7th Cir. 2000). 2

9 matters, EEAC is well situated to brief the Court on the relevant concerns of the business community and the significance of this case to employers generally. STATEMENT OF THE CASE Respondent-Appellant Aerotek is engaged in the business of providing temporary staffing to various clients. EEOC v. Aerotek, Inc., No. 10-cv-7109, 2011 U.S. Dist. LEXIS 3723, at *1 (N.D. Ill. Jan. 12, 2011). In addition to its external, contract employees, the company also maintains its own workforce of internal employees who recruit, manage and administer the contract employee workforce. Id. at *2. In May 2008, two former internal employees (Gutierrez and Rivera) filed EEOC charges alleging national origin discrimination, retaliation and constructive discharge in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e et seq. Id. On September 15, 2009, the EEOC issued a subpoena demanding that Aerotek provide extensive information about its internal employee and external contractor workforce, as well as its clients, purportedly as part of its investigation of the Gutierrez and Rivera charges. Id. at *3. Aerotek declined to produce the requested information regarding external contractors and clients, arguing among other things that it was irrelevant to the specific charges being investigated. Id. at *3, *11. Aerotek subsequently petitioned the Commission to revoke or modify the subpoena, again pointing out that the information being sought was overbroad and unrelated to resolution of the Gutierrez and Rivera charges. Id. at *13-*14. It also 3

10 contended that some of the data the EEOC requested would be extremely burdensome to collect. Id. On January 19, 2010, the Commission denied the petition. R. 60. Significantly, the Commission at that time was composed of just two members and therefore was lacking a three-member quorum as required by Title VII U.S. Dist. LEXIS 3723, at *3-*8. Over the next several months, Aerotek produced substantial amounts of data, but refused to turn over information about its clients or that otherwise had no bearing on resolution of the charges under investigation. Id. In November 2010, the EEOC filed the instant action in the U.S. District Court for the Northern District of Illinois seeking enforcement of the subpoena. Id. at *4. In urging the district court to deny the agency s application, Aerotek reiterated its contention that the subpoena sought information completely unrelated to investigation of the Gutierrez and Rivera charges. Id. at *13-*19. It also urged the district court to dismiss the application on the ground that the Commission s decision on the petition to revoke was made by fewer than the quorum required by Title VII and therefore was invalid, citing the U.S. Supreme Court s 2010 decision in New Process Steel, L.P. v. NLRB, 560 U.S., 130 S. Ct (2010). Id. at *4- *11. The district court granted the EEOC s application in its entirety, and denied Aerotek s motion to dismiss on jurisdictional grounds. Id. at *19. It determined that New Process Steel does not apply. Id. at *10-*11. It also found that even if the matter were dismissed and returned to the EEOC for proper review before a full 4

11 Commission, the agency would likely make the same decision denying the petition with the two modifications, and initiate the same enforcement proceedings now before this Court if Aerotek failed to comply. Id. Regarding the validity of the subpoena itself, the court found that the EEOC was entitled to demand all of the data sought, concluding, Considering the basis of Aerotek as a business is recruitment of employees (internal and external), material related to its employment practices is especially relevant to the investigation. Id. at *17. This appeal ensued. SUMMARY OF ARGUMENT The EEOC does not possess unfettered discretion to seek out other forms of discrimination not alleged by the charging party and outside the scope of its reasonable investigation of the charging party s claims. See EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002); see also EEOC v. General Electric Co., 532 F.2d 359, (4th Cir. 1976) (EEOC lacks the power to carte blanche expand a charge beyond the scope of reasonable investigation of the underlying charge). To the contrary, its authority to compel the production of evidence is limited to materials relevant to the allegations in the charge. 42 U.S.C. 2000e-8(a). The test is whether new allegations appear[] to be one[s] initiated by the agency, the court said, as opposed to ones that grow[] reasonably out of the investigation of the initial charge. General Electric Co., 532 F.2d at 368. The EEOC is not entitled to judicial enforcement of its administrative subpoena in this case, because the information it seeks is wholly irrelevant to the underlying 5

12 charges being investigated. [U]nlike other federal agencies that possess plenary authority to demand to see records relevant to matters within their jurisdiction, the EEOC is entitled to access only to evidence relevant to the charge under investigation. EEOC v. Shell Oil Co., 466 U.S. 54, 64 (1984) (citation and footnote omitted) (emphasis added). 2 Because of the important role it plays in the EEOC s enforcement procedure, a discrimination charge must do more than merely... allege that an employer has violated [the law]. Id. at 72. Thus, courts must strive to give effect to Congress purpose in establishing a linkage between the Commission s investigatory power and charges of discrimination, id. at 65, which is intended to prevent the Commission from exercising unconstrained investigative authority.... Id. In this case, the EEOC seeks to obtain far-reaching information about Aerotek s employment practices evidently to assess whether and to what extent it may be found to have discriminated indiscriminately against broad classes of (1) internal Aerotek employees, and (2) external, contract employees it places with outside clients in violation of any of the laws the agency is authorized to enforce. Yet nothing that might be revealed by the information sought will assist the agency in 2 Specifically, Title VII of the Civil Rights Act of 1964 (Title VII) provides, in relevant part: In connection with any investigation of a charge filed under section 706 [2000e-5 of this title], the Commission or its designated representative shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this title and is relevant to the charge under investigation. 42 U.S.C. 2000e-8(a) (emphasis added). 6

13 determining whether the charging parties were subjected to unlawful discrimination and retaliation as alleged in their charges. The relevance of an EEOC inquiry must be inextricably tied to the harm allegedly suffered by the individual charge-filer. This interpretation is most consistent with Title VII and its requirement that the charging party be personally aggrieved. 42 U.S.C. 2000e-5. It also is most consistent with Title VII s provision of other statutory tools, including Commissioner charges, which enable the agency to pursue other forms of discrimination that are not the subject of a specific individual charge. Furthermore, permitting the EEOC to demand information pertaining to issues outside the scope of the underlying charge would unfairly deprive employers large and small of the important due process guarantees to which they are entitled. Unfocused efforts such as these also do little, if anything, to satisfy the agency s obligations to individual charging parties whose claims are, for all intents and purposes, left to languish while the agency pursues bigger fish. ARGUMENT I. AN EEOC INVESTIGATIVE SUBPOENA DEMANDING INFORMATION ABOUT EMPLOYMENT PRACTICES BEYOND THE SCOPE OF REASONABLE INVESTIGATION OF THE FILED CHARGE IS OVERBROAD AND MUST BE DENIED A. The EEOC May Not Enforce An Administrative Subpoena That Is Not Predicated Upon A Valid Charge Of Discrimination The EEOC is permitted to investigate alleged employment discrimination only upon receipt of a legally sufficient discrimination charge. 42 U.S.C. 2000e-5; see 7

14 also EEOC v. Univ. of Pa., 493 U.S. 182, 190 (1990) ( The Commission s enforcement responsibilities are triggered by the filing of a specific sworn charge of discrimination ). A valid charge under the Act is one that is submitted in writing, under oath or affirmation, 42 U.S.C. 2000e-5(b), and signed by the charging party. 29 C.F.R In addition, the EEOC s procedural regulations require that charges include a clear and concise statement of facts, including pertinent dates, constituting the alleged unlawful employment practices and that the agency must serve a notice of the charge, including the date, place and circumstances of the alleged unlawful employment practices on the employer within ten days. 29 C.F.R (a)(3), (a). The evident purpose of the regulation [is] to encourage complainants to identify with as much precision as they can muster the conduct complained of. Shell Oil, 466 U.S. at 72. Interpreting the EEOC s charge filing regulation, the U.S. Supreme Court in EEOC v. Shell Oil held that: Insofar as he is able, the [charging party] should identify the groups of persons that he has reason to believe have been discriminated against, the categories of employment positions from which they have been excluded, the methods by which the discrimination may have been effected, and the periods of time in which he suspects the discrimination to have been practiced. Id. at 73. The reviewing court then has a responsibility to satisfy itself that the charge is valid and that the material requested is relevant to the charge... before the subpoena is enforced. Id. at n.26. If a submission fails to satisfy these 8

15 requirements, it will not constitute a charge over which the EEOC has authority to investigate. The subpoena at issue in this case is so broad that it likely reaches virtually any and all employment policies, practices and decisions affecting Aerotek s internal employees as well as its external contractors and clients including those involving recruitment, hiring, compensation and benefits, work assignments, performance evaluations, discipline, discharge or any other term or condition of employment. It contains no meaningful boundaries whatsoever and, if found to be valid and enforceable as written, essentially would authorize the agency to launch a full-scale, unconstrained audit of all employment practices affecting Aerotek s internal employees, as well as the temporary contractor workforce it supplies to countless external clients. The importance of the statutory and regulatory provisions governing the contents of a valid Title VII charge is not merely academic. The allegations in the charge govern the scope of any subsequent investigation by the EEOC. As the Supreme Court observed in Shell Oil, the charge allegations and the subpoena are closely related in the sense that the agency may only access evidence that is relevant to the charge under investigation. 466 U.S. at 64 (citation omitted). When the EEOC exceeds its statutory authority by issuing subpoenas for information pertaining to issues outside the bounds of the allegations being investigated, it unilaterally dispenses with these statutory requirements and robs employers of the basic protections they afford. EEOC v. Bailey Co., 563 F.2d 439, 9

16 450 (6th Cir. 1977). Permitting the EEOC, in seeking enforcement of an administrative subpoena, merely to allege that an employer has violated Title VII, Shell Oil, 466 U.S. at 72, would render nugatory the statutory limitation of the Commission s investigative authority to materials relevant to a charge, id., and thereby would thwart Congress desire to prevent the Commission from exercising unconstrained investigative authority.... Id. at 65. It also would undermine a number of additional congressional objectives underlying Title VII. As the Supreme Court observed in Shell Oil, for instance, the statute s requirement of a valid charge, together with its notice provision, give employers fair notice of the existence and nature of the charges against them, 466 U.S. at 77, and inform[] the employer of the areas and time periods in which the [charging party] suspects that the employer has discriminated.... Id. at 79. Among other things, such notice enables a well-intentioned respondent to undertake its own inquiry into its employment practices and to comply voluntarily with the substantive provisions of Title VII. Id. None of these objectives are met in instances such as this where the agency shirks its responsibility to conform its investigation to the confines of the filed charge, choosing instead to craft its request based on the violation it hopes to uncover. 10

17 B. The EEOC s Investigative Authority Under Title VII Is Not Plenary; It Is Limited To Investigation Of Issues Relevant To The Claims Of The Charging Party Moreover, Title VII expressly limits the scope of an EEOC investigation to matters that are relevant to the specific charge actually under investigation. 42 U.S.C. 2000e-8. The applicable statutory authority provides: In connection with any investigation of a charge filed under section 706 [42 U.S.C. 2000e-5], the Commission or its designated representative shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this [subchapter] and is relevant to the charge under investigation. 42 U.S.C. 2000e-8(a) (emphasis added). 3 As the U.S. Supreme Court has observed, unlike other federal agencies that possess plenary authority to demand to see records relevant to matters within their jurisdiction, the EEOC is entitled to access only to evidence relevant to the charge under investigation. Shell Oil, 466 U.S. at 64 (citation and footnote omitted) (emphasis added). In this respect, the EEOC s investigatory power is significantly narrower than that of [some other federal agencies] who are authorized to conduct investigations, inspect records, and 3 Congress granted the same investigative authority to the EEOC that exists for the National Labor Relations Board (NLRB). 42 U.S.C. 2000e-9. Section 11 of the Labor Management Relations Act, 29 U.S.C. 141 et seq., provides that [t]he Board, or its duly authorized agents or agencies, shall at all reasonable times have access to... any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question. 29 U.S.C. 161(1). Section 11 further provides that, [w]ithin five days after the service of a subpoena on any person requiring the production of any evidence... such person may petition the Board to revoke, and the Board shall revoke such subpoena if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings.... Id. (emphasis added). 11

18 issue subpoenas, whether or not there has been any complaint of wrongdoing. Id. at (citation omitted). Thus, at the core of this dispute is the question of relevance, and whether the EEOC is entitled to any material which [it] deems relevant in its discretion. EEOC v. Ford Motor Credit Co., 26 F.3d 44, 47 (6th Cir. 1994). The agency s investigative authority simply is not that broad. In EEOC v. United Air Lines, Inc., this Court reasoned that the requirement of relevance, like the charge requirement itself, is designed to cabin the EEOC s authority and prevent fishing expeditions. 287 F.3d 643, 653 (7th Cir. 2002) (quoting EEOC v. K-Mart Corp., 694 F.2d 1055, 1066 (6th Cir. 1982)). In declining to enforce the EEOC s impermissibly expansive subpoena in that case, the Court said to permit the EEOC to conduct such a broad investigation would require [the court] to disregard the Congressional requirement that the investigation be based on the charge. Id. at 655. See also EEOC v. Randstad U.S., L.P., 765 F. Supp. 2d 734, 741 (D. Md. 2011) (declining to enforce subpoena seeking data regarding entire category of jobs for which the charging party was not qualified); EEOC v. City of Milwaukee, 919 F. Supp. 1247, 1259 (E.D. Wis. 1996) (declining to enforce portions of subpoena seeking the medical records of third parties where such evidence was not reasonably relevant to the charge); EEOC v. Ford Motor Credit Co., 26 F.3d 44, 47 (6th Cir. 1994) (refusing to enforce subpoena in its entirety where temporal scope was too broad and would have required the production of information not relevant to the charge, including information concerning employees not similarly-situated to charging party); Joslin Dry Goods Co. v. EEOC, 483 F.2d 178, (10th Cir. 12

19 1973) (restricting the subpoena demand to information concerning the retail store where the charging party worked). When an EEOC subpoena exceeds the bounds of relevancy, courts will either deny enforcement of the agency s demand or will scale back the agency s request to reflect a more appropriate scope of investigation. In General Insurance Co. v. EEOC, for example, the Ninth Circuit refused to enforce an EEOC subpoena issued in connection with a sex-based wage discrimination charge, where the subpoena requested nearly eight years of records and demanded evidence going to forms of discrimination not even charged or alleged. 491 F.2d 133, 136 (9th Cir. 1974). Similarly, in EEOC v. Packard Electric Division, the Fifth Circuit rejected a subpoena for plant-wide statistical data where it was not immediately evident how the data was relevant to the individual complaints under investigation. 569 F.2d 315, 318 (5th Cir. 1978). Courts also long have refused to allow the EEOC to utilize its subpoena authority to pursue other theories of discrimination not asserted in the charge under investigation. In EEOC v. Southern Farm Bureau Casualty Insurance Co., for instance, the Fifth Circuit refused to enforce an EEOC subpoena seeking information concerning gender in connection with the investigation of a race discrimination charge filed by an African-American male. 271 F.3d 209, (5th Cir. 2001). The court observed that the EEOC s authority to demand information is not unlimited, but rather must be based on the specific claims raised in a valid charge. Id. See also EEOC v. Kronos, Inc., 620 F.3d 287 (3d Cir. 2010) (inquiry into 13

20 potential race discrimination is not a reasonable expansion of a disability discrimination charge). Accordingly, the charge of discrimination plays an important role in the EEOC s enforcement procedure by defining the scope of the investigation. Shell Oil, 466 U.S. at 68. The charge must do more than merely to allege that an employer has violated [the law], id. at 72, as the lack of specificity would render nugatory the statutory limitation o[n] the Commission s investigative authority to materials relevant to a charge. Id. (emphasis added). Moreover, courts must strive to give effect to Congress purpose in establishing a linkage between the Commission s investigatory power and charges of discrimination, id. at 65, which is intended to prevent the Commission from exercising unconstrained investigative authority... Id. Even the agency s own Compliance Manual counsels investigators against collecting irrelevant information and data exceeding the scope of the charging party s allegations, instructing them, for example, to collect only evidence that is both material to the charge and relevant to the issue(s) raised in the charge. EEOC Compl. Man (1988 & Supp. 2012). Evidence is material, the agency explains, when it relates to one or more of the issues raised by a charge... or by a respondent s answer to it. Id. at 602.4(a) (1988 & Supp. 2012) (emphasis added). Evidence is relevant if it tends to prove or disprove [a material] issue raised by a charge. Id. at 602.4(b) (1988 & Supp. 2012) (emphasis added). 14

21 Accordingly, the manual explains that where the charging party alleges the employer denied training, assignments, pay increases, retention rights, transfer, and promotion... to laid off employees eligible to retire but made available to younger employees, material evidence would include information on [the charging party] and his/her performance; information on the ages, positions, and performance of laid off employees, remaining employees, and recalled employees; copies of company benefit plans and policy statements; any actuarial data used to support benefit reductions; and testimony but would not include [v]oluminous data that has nothing to do with [the] employment practices [being] investigated. EEOC Compl. Man (a) (1988 & Supp. 2012). Applying these principles here, it is plain that the district court erred in concluding that the information demanded in the EEOC s subpoena was relevant to the scope of its investigation of the Rivera and Guttierez charges. The subpoena requests a variety of information and documents pertaining to, for example, unsuccessful applicants for employment with Aerotek, even though neither Rivera nor Gutierrez claims to have been denied employment, as well as unsuccessful applicants for contractor positions with Aerotek, although neither Rivera nor Gutierrez was an external contractor placed for temporary assignment with an outside client. Simply put, the data sought by the EEOC will do nothing to shed light upon Rivera and Gutierrez s Title VII national origin discrimination and retaliation claims and therefore is beyond the agency s investigative reach. 15

22 In justifying its breathtakingly broad subpoena, the EEOC references the fact that the investigator assigned to handle the Rivera and Gutierrez charges is also responsible for investigating ten additional Charges filed against Aerotek s Illinois facilities. R. 11 (emphasis in original). It contends that taken together, the twelve charges allege retaliation, age discrimination, disability discrimination, sex harassment, and race harassment. Id. Specifically, the EEOC asserts that in investigating those individual charges, it uncovered evidence that Aerotek may be placing certain employees into jobs with lower pay because of their national origin, and that Aerotek employees may be directed to recruit temporary employees based on prohibited factors such as race, national origin, disability status, and sex. Id. (emphasis added). Regrettably, the EEOC has elected not to elaborate on what evidence it possesses in support of its claims, nor has it made any attempt to draw a connection between those disparate allegations and the allegations of the charges subject to the subpoena. There is no logical basis for concluding short of suggesting somehow that Aerotek discriminates indiscriminately against its internal employees, as well as the external contractor workers it places with its outside clients that the existence of other charges not the subject of the underlying subpoena is relevant to resolution of the Rivera and Gutierrez charges under investigation. The EEOC appears to suggest that because Aerotek is the subject of several other discrimination charges, it necessarily is an EEO bad actor whose employment practices must be closely scrutinized to ensure compliance with the 16

23 laws the agency enforces. That contention is not borne out by the facts, however. Rivera and Gutierrez s charge forms indicate that Aerotek employed at least 500 employees at its Schaumburg location in R Assuming that all twelve charges referenced by the EEOC were pending in 2008, they would represent the experiences of less than three percent of the internal employee and external contractor workforce. Factoring into the equation the potentially countless individuals who were not hired in 2008, the twelve pending charges would represent even less than three percent. Far from suggesting that Aerotek is a serial discriminator, the statistics confirm that the company is strongly committed to equal employment opportunity and has been effective in preventing workplace discrimination. The EEOC may not expand or otherwise transform an individual charge into an across-the-board attack on a company s employment practices. General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, (1982). Here, the agency contends that the information sought in the subpoena relates to Respondent s hiring and job placement practices, which impact both internal and temporary employees. R. 17. It goes on to state, This information is relevant to the Charges under investigation, as it may show a pattern of discrimination against internal and/or temporary employees based on national origin. Id. Significantly, however, neither of the two charges underlying the EEOC subpoena asserts pattern-orpractice claims, nor has the agency explained the basis for its expansive information request. 17

24 Any act of discrimination could be part of a pattern or practice of discrimination, but not every charge of discrimination warrants a pattern or practice investigation. EEOC v. BNSF R.R., 2012 U.S. App. LEXIS 3902, at *8-*9 (10th Cir. Feb. 27, 2012). Because neither Rivera nor Gutierrez alleges systemic hiring bias or any other pattern of unlawful discrimination, the information sought by the EEOC is irrelevant to the charges under investigation, and the district court erred in granting the application. Wide deference to the scope of [EEOC] subpoenas... does not transcend the gap between the pattern and practice investigation and the private claims that have been shown here. Id. at *9. If the EEOC suspects another form of discrimination is at play, it must obtain a valid charge in order to investigate, such as the issuance of a commissioner s charge. Southern Farm Bureau, 271 F.3d at 211. See also United Air Lines, 287 F.3d at 655 n.7 (if EEOC discovers a pattern or practice of discrimination during the investigation of a narrower charge, it would be free to file a commissioner s charge incorporating those allegations and broaden its investigation accordingly ). Indeed, even the EEOC s own Compliance Manual recognizes that agency investigators are not at liberty to expand individual charge investigations to include issues beyond the scope of the charging party s allegations and specifically counsels investigators to consider the appropriate statutory authority before investigating other forms of suspected discrimination. EEOC Compl. Man., Investigative Procedures, 25.7 (1987 & Supp. 2012) (investigators should consider seeking a Commissioner charge to address new bases/issues that go beyond those already being investigated). 18

25 Unlike some other federal agencies, the EEOC may compel the production only of information that is relevant to, and within the scope of a reasonable investigation of, the charging party s claims. The district court s ruling below failed to hold the agency to this relevancy standard by permitting it to expand the investigation well beyond the scope of the national origin and retaliation allegations of the underlying charges. II. AUTHORIZING THE EEOC S TACTICS IN THIS CASE WILL ONLY ENCOURAGE MORE WIDESPREAD INVESTIGATIVE AND LITIGATION ABUSES, PARTICULARLY AGAINST LARGE EMPLOYERS If not held accountable to the relevancy constraints placed by Title VII on its investigative subpoena authority, the EEOC undoubtedly will continue (even formalize) the practice of crafting vague and indefinite charges for the purpose of conducting unfettered fishing expeditions in direct contravention of its statutory mandate. See Shell Oil, 466 U.S. at 90 ( Experience teaches that Government administrative agency investigations can be prone to abuse and are likely to be conducted more reasonably, more carefully, and more fairly, when the concerned parties are adequately notified of the causes of the investigation that are in progress ) (O Connor, J., concurring in part, dissenting in part). Such a result would deny employers any meaningful opportunity to respond to charges and unfairly rob them of the due process guaranties to which they are entitled. EEOC v. Bailey Co., 563 F.2d 439, 450 (6th Cir. 1977) (citation omitted). 4 4 The EEOC has a variety of statutory tools at its disposal for the purpose of investigating and eradicating employment discrimination. The very purpose of a Commissioner charge, for example, is to enable the agency to investigate possible discrimination in situations 19

26 Notably, the EEOC recently approved a five-year Strategic Plan that sets out to, among other things, use administrative and litigation mechanisms to identify and attack discriminatory policies and other instances of systemic discrimination. U.S. EEOC Strategic Plan for Fiscal Years (Strategy I.A.3). 5 As part of its aim, the agency plans to establish an as-yet-unspecified minimum percentage goal for agency litigation involving claims of systemic discrimination. This performance measure will provide an incentive for the EEOC to conduct systemic investigations when it finds evidence of potential widespread discriminatory practices. Id. (Performance Measure 4 for Strategy I.A.3). The agency goes on to explain: As the EEOC gradually increases the proportion of systemic cases in its litigation docket, the strategic selection of individual and small class cases will take on greater importance. In making these strategic selections, the Commission will be cognizant of its statutory mandate of preventing unlawful employment discrimination under all of the statutes it enforces, under all protected bases, and involving a wide range of employment actions. Id. (emphasis added). The enforcement policy objectives outlined in the EEOC s strategic plan create a perverse incentive to engage in the very type of broad, undisciplined charge investigation undertaken in this case, particularly against large employers who statistically are more likely than smaller companies to have multiple, pending where either no individual charge has been filed or where discrimination is believed to be more widespread than the specific allegations made by an individual charge. Donald R. Livingston, EEOC Litigation and Charge Resolution (BNA 2005). The EEOC should not be permitted to circumvent the statute s requirement that it obtain a Commissioner charge where, as here, it otherwise lacks the authority to investigate. 5 Available at 20

27 charges a veritable well from which the EEOC may fish for possible violations 6. Inasmuch as such an approach ignores the EEOC s statutory obligation to limit its investigation to those issues reasonably related to, and necessary to the resolution of, the underlying charge, it should be forcefully rejected by this Court. Because the subpoena at issue in this case seeks information beyond the scope of a reasonable investigation of the underlying charges and the claims they assert, it should not be enforced. Accordingly, the district court s decision granting the EEOC s application is erroneous, and should be reversed by this Court. CONCLUSION For all of the foregoing reasons, the Equal Employment Advisory Council respectfully urges the Court to reverse the district court s decision below. Respectfully submitted, s/ Rae T. Vann Rae T. Vann NORRIS, TYSSE, LAMPLEY & LAKIS, LLP 1501 M Street, N.W., Suite 400 Washington, DC (202) rvann@ntll.com Attorneys for Amicus Curiae Equal Employment Advisory Council 6 Indeed, many large employers will be regular respondents to EEOC charges, not because they are serial discriminators, but because they employ tens of thousands (or hundreds of thousands) of employees and receive countless more expressions of interest each year. Therefore, statistically they are more likely to be the subject of charge filings than smaller companies with less employment activity. 21

28 CERTIFICATE OF COMPLIANCE I, Rae T. Vann, hereby certify that this Brief Amicus Curiae Of The Equal Employment Advisory Council In Support Of Respondent-Appellant And In Support Of Reversal complies with the type-volume limitations set forth in Fed. R. App. P. 29(d) and 32(a)(7)(B)(i). This brief is written in Century Schoolbook twelve-point typeface using MS Word 2003 word processing software and contains 5,458 words. s/ Rae T. Vann Rae T. Vann NORRIS, TYSSE, LAMPLEY & LAKIS, LLP 1501 M Street, N.W., Suite 400 Washington, DC (202) rvann@ntll.com Attorneys for Amicus Curiae Equal Employment Advisory Council

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