Over the past year we have continued to witness the EEOC engage in broad based investigations as part of its systemic initiative, including successfully relying on subpoena enforcement actions in circumstances where an employer fails and/or refuses to respond to EEOC requests for information, documents and/or data.

The June 20, 2011, decision by the U.S. Supreme Court in Dukes v. Wal-Mart, which placed limits on the potential scope of employment discrimination class actions, may embolden the EEOC to expand its reach involving class-type investigations and related litigation because the EEOC is not bound by the procedural hurdles to class actions faced by plaintiffs under Rule 23 of the Federal Rules of Civil Procedure.

This paper initially focuses on an overview of systemic and/or pattern or practice investigations by the EEOC and the legal basis for commencing such investigations. The basic standard concerning the permitted scope of the EEOC’s investigative authority, as discussed in the U.S. Supreme Court’s decision in EEOC v. Shell Oil Co., 466 U.S. 54 (1984), is next examined, followed by a review of the applicable law and rules regarding the EEOC’s subpoena authority and procedural steps required to challenge a subpoena prior to the EEOC initiating a subpoena enforcement action.

The discussion then turns to lessons learned from recent subpoena enforcement actions initiated during the course of an EEOC investigation, including review of recent case authority dealing with: (1) requests for computerized personnel data; (2) requests for information involving personnel actions different from the underlying charge; (3) requests for information over a broad geographical area; (4) the EEOC’s authority to conduct systemic investigations even after a charging party settles his/her charge and/or initiates legal action; and (5) subpoenas issued to third parties by the EEOC.

This paper is designed to assist employers in understanding the broad scope of authority given to the EEOC, but also provide some helpful guidance when employers seek to modify or limit the scope of an EEOC subpoena. 

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