August 22, 2013

EEOC Investigations Gone Wild: The Sobering Tale Of Aggressive Government Efforts To Drum Up Class Actions

Picture this: you get to work on a Monday morning, grab a cup of coffee and turn on your computer only to find that 1,300 of your employees received an e-mail asking various questions about perceived age discrimination in your workplace as part of an “official inquiry” and a “federal investigation.”  Would that ruin your day?  It likely did for a group of HR and legal professionals at Case New Holland, Inc., a large agricultural and construction equipment business.

On June 5, 2013, without any advance notice to CNH or its counsel, an EEOC investigator sent a mass e-mail to 1,300 CNH employees on their work e-mail accounts.  The e-mail stated that CNH was the subject of a “Federal Investigation,” that the e-mail was part of “an official inquiry” and prompted employees to complete an online questionnaire which was directed to various questions of age bias at the company.

The EEOC investigator sent this e-mail after letting the matter sit dormant for 17 months, having no communications with CNH during that time frame. CNH also appears to have bent over backwards to cooperate with the EEOC, having provided it with nearly 75,000 pages of employee records.

The EEOC maintains that the mass e-mail was an “efficient” means of “identifying potential class members.”  Efficient indeed!  But, was it legal?  CNH has now sued the EEOC in federal court in Washington, D.C. claiming that the EEOC exceeded its statutory responsibilities and violated both the Administrative Procedures Act and the U.S. Constitution in doing so.

Did the EEOC break the law?  Only time will tell.  The resolution of that issue depends on complicated statutory issues involving the EEOC’s authority under the Administrative Procedures Act and complex interpretations of various provisions of the Fourth and Fifth Amendments to the U.S. Constitution.

The better questions are whether this situation is likely to repeat itself and, if so, what employers can do about it.  On the first question, the EEOC’s claim that it was “efficient” was not exactly a ringing endorsement of this particular investigator’s tactics.  But, at the same time, no one from the EEOC has said that the investigator erred or that the EEOC would discontinue use of this very aggressive means of enforcement – a statement that the EEOC may have difficulty making given the pendency of CNH’s lawsuit.

Regardless of the legality, the EEOC really would have no good reason to stand by this investigative technique.  Despite the characterization of this survey as “efficient,” the survey sought information about “age-related comments” without identifying what the EEOC considers to be such a comment.  And, the EEOC cast its net so widely that it would be gathering information about offices and individual supervisors that had nothing to do with the underlying investigation.

Whether the EEOC repeats this investigatory tactic remains to be seen.  But it does beg the question: what can employers do proactively to prevent the same thing from happening to them?  In particular, do employers have to provide outside government entities with access to their employees’ work e-mail accounts?

Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act provide that the EEOC “shall . . . have access to . . . any evidence . . . that relates to unlawful employment practices,” but it does not state that employers must provide electronic means of communicating with their employees during work time using work property.  42 U.S.C. §2000e-8, 12117.  Similarly, the Age Discrimination in Employment Act allows the EEOC to “question employees” but does not specify whether an employer must allow such questioning on premises or, in this case, by using an employer’s work-related e-mail server.  29 U.S.C. §626(a); 29 U.S.C. §211.  And, California’s Fair Employment and Housing Act allows the Department of Fair Employment and Housing to investigate charges of discrimination but does not explicitly require an employer to provide access to its property in order to facilitate such an investigation.  Cal. Gov’t Code §12930.

So, the law does not require employers to provide the EEOC or the DFEH access to employers’ e-mail servers for purposes of investigating charges of discrimination.  Indeed, on the EEOC’s own website, it acknowledges that, at most, it can ask an employer to “permit” an on-site inspection and presumably the same would be true insofar as access to e-mail servers is concerned.

Does it make sense then to pre-emptively block all “” or “” e-mail addresses from sending e-mail to employees?  It certainly seems like a drastic step, particularly for an employer faced with a simple, run-of-the-mill discrimination charge.  More importantly, it makes an employer look defensive when in most cases there is no reason to be.

But what about the employer faced with an investigator who seems hellbent on making a mountain out of a molehill – does it make sense then?  Even then, it seems like a drastic first step.  Like all of us, EEOC investigators have supervisors and frequently those supervisors are willing to assist when an employer has concerns about the scope of the investigation.  Before considering shutting off outside government access to your e-mail servers, employers should try to exhaust other, less draconian means before taking that step.

To be sure, some employers will not want to take the chance that they end up in the same position as CNH.  After all, while the investigation into CNH had been comprehensive, to say the least, the investigator had seemingly gone underground for 17 months before sending the mass e-mail, so CNH had no signal that the EEOC was going to send a mass e-mail to 1,300 of its employees.

Of course, the EEOC would be well-advised to provide guidance as to whether this investigatory technique is likely to continue.  Otherwise, it may find that otherwise cooperative employers will be blocking their e-mails from reaching employees on work e-mail addresses out of fear of becoming the next CNH.