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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Friday, September 19, 2014

Judge Backs EEOC’s Right to Investigate Companywide Policy

Here is an interesting press release from the EEOC.  Often, employers resist the idea that they should have to show what their policy has been company-wide. They want to restrict the documentation to the specific incident involved. If they can get away with it, it can make the employee's case harder to prove. 

In this case, the federal court backed up the EEOC in asking for three years of documentation regarding their implementation of the policy. 

Based on Applicant's Allegation That Company Required Unlawful Pre-Offer Health Questionnaire
TAMPA, Fla. - A federal court has ordered KB Staffing, Inc., a staffing firm servicing central Florida, to comply with an administrative subpoena issued by the U.S. Equal Employ­ment Opportunity Commission (EEOC), the agency announced today.  The subpoena, issued in December 2013, seeks informa­tion pertaining to a charge filed with the agency alleging that KB Staffing discriminated against current and prospective applicants for employment and/or employees because of improper health questionnaires.

The EEOC's litigation is based on the company's refusal to comply with a subpoena issued during the course of an investigation. The charge alleged that a job applicant was not hired for a position with KB Staffing because she refused to complete a pre-offer health questionnaire.  Based on that, the EEOC charged the company with violating the Americans With Disabilities Act (ADA).  KB Staffing argued that the EEOC's subpoena exceeded the scope of the charge and that the request for three years' worth of documents was too broad.

The court rejected KB Staffing's arguments, finding that the subpoena issued by the EEOC was within the agency's authority and was relevant to the charge.  U.S. Magistrate Judge Anthony E. Porcelli wrote the recommendation, which was adopted in its entirety by U.S. District Court Judge James S. Moody, Jr. on September 16, 2014.

"EEOC maintains the authority to investigate whether KB Staffing engaged in systemic discrimination when it used a pre-offer health questionnaire during its application process, despite the victim-specific relief it could pursue on the Charging Party's behalf and despite KB Staffing's assertion that it ceased use of the health questionnaire as of December 2012," the judge wrote (EEOC v. KB Staffing, LLC, No. 8:14-mc-41 (M.D.Fla. Aug. 28, 2014) (Report and Recommendation, A. Porcelli, M.J.).

The EEOC subpoena enforcement action was litigated by Supervisory Trial Attorney Kimberly A. Cruz and Trial Attorney Aarrin Golson, and the administrative investigation is being managed by Tampa Field Director Georgia Marchbanks.

"Systemic investigations are important to all charges handled by the EEOC, and the use of subpoenas is vital to carrying out those investigations" said Marchbanks. "We are pleased that the Magistrate and Judge gave us the go ahead to enforce our subpoena and continue our investigation."
Eliminating policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforce­ment efforts, is one of six national priorities identified by the Commission's Strategic Enforcement Plan (SEP).

The EEOC is responsible for enforcing federal laws against employment discrimination. The Miami District Office's jurisdiction includes Florida, Puerto Rico and U.S. Virgin Islands. Further information is available at www.eeoc.gov.

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