Most cases about which we report in our blog are in a similar procedural posture: a plaintiff sues a defendant, and the court makes a finding that we, in turn, find interesting and want to share. Equal Employment Opportunity Commission v. Randstad, Case 11-1759 (4th Cir. July 18, 2012) is different. Instead of litigation between an employee and her employer, Randstad involved a fight between the EEOC and an employer who challenged – unsuccessfully – the subpoena power of the EEOC.
Kevin Morrison was born in Jamaica and ended up living in Maryland. Randstad is a large temp agency with 600 offices in 37 states, including Maryland. In August of 2005 Randstad placed Mr. Morrison with a company for one month as a mail clerk. In September of the next year, 2006, Randstad placed him with another company, Lenox, Inc., in a warehouse job. When he arrived for work at Lenox, Mr. Morrison was asked to fill out some forms. Unbeknownst to either Randstad or Lenox, Mr. Morrison could not read or write. He called Randstad and asked for help in filling out the paperwork. Next, he asserts that his Randstad manager told him, “We don’t hire people who cannot read. Come back when you learn to read.” Randstad then fired him and told him he would be eligible for rehire once he learned to read.
Mr. Morrison went to the EEOC and filed a charge of discrimination, based on his national origin, Jamaican. National origin discrimination is unlawful under Title VII of the Civil Rights Act of 1964. The EEOC contacted Randstad and began an investigation.
Randstad admitted that it had terminated Mr. Morrison because of his inability to read, but it denied that this decision had anything to do with his national origin. Instead, Randstad claimed that virtually all of its job placements required literacy. Because it had no unlawful motive, no “discriminatory animus,” Randstad requested that the EEOC conclude that there was “no cause” to believe that Randstad had violated Title VII.
The EEOC did nothing with Randstad’s request or Mr. Morrison’s charge for two years.
During that time, however, Mr. Morrison consulted a psychologist and obtained a diagnosis that he had an intellectual disability (mild retardation) that prevented him from reading and writing. Mr. Morrison promptly filed an amended charge with the EEOC, this time claiming unlawful discrimination under the Americans with Disabilities Act.
The EEOC went back to Randstad with Mr. Morrison’s amended charge and requested information about Randstad’s literacy policy, as well as a list of all of the clients of its Maryland office in Hagerstown from 2006 through 2009. Randstad refused to comply voluntarily, and the EEOC issued an administrative subpoena demanding information on all of Randstad’s clients from January 2005 through January 2010. Randstad complained about the nationwide scope of the request, and the EEOC narrowed its subpoena to client lists in Randstad’s 13 offices in Maryland. Although the scope of the request was narrowed, it would still require considerable effort to comply: Between 2005 and 2010, Randstad had placed over 100,000 temporary employees in Maryland.
Randstad refused to answer the subpoena and the EEOC took the matter to court.
Randstad’s refusal was based on a number of arguments, but we will focus on two: as to the national origin charge, Randstad reiterated its assertion that virtually all positions in which it placed temporary employees required some basic reading skills, and therefore its decision was unconnected to the fact that Mr. Morrison was from Jamaica. And the disability charge, Randstad argued, came far too late: almost two-and-a-half years after the termination.
After the trial court agreed with Randstad on both points and refused to enforce the subpoena, the EEOC appealed.
A three-judge panel of the Fourth Circuit reversed and ruled in the EEOC’s favor. The judges reaffirmed the broad investigative authority of the EEOC. The EEOC may access any evidence that relates to unlawful employment practices covered by federal anti-discrimination law and is relevant to the charge under investigation. If an employer refuses, the EEOC may ask a court to enforce its subpoena, and the court must do so when the EEOC shows that it is authorized to make such investigation, that it has complied with statutory requirements of due process, and that the requested material is relevant. To show its authority to investigate, the EEOC only needs to show that it has an “arguable” basis for “plausible” jurisdiction.
The Fourth Circuit found that the EEOC had authority under Title VII, since the national origin claim was timely and had never been abandoned or resolved. But the EEOC also had authority under the ADA, since the ADA charge “related back” to the date of the original filing. The Fourth Circuit found it irrelevant whether an amended charge adds new facts to those alleged in the original charge, or whether as here the employee simply puts forth a new theory of recovery. Mr. Morrison’s new allegations of disability discrimination merely clarified that there was another possible explanation for his termination.
To come to this holding, the judges had to distinguish this case from Evans v. Tech. Applications & Serv. Co., 80 F.3d 954 (4th Cir. 1996), which stood for the proposition that “an amendment to an EEOC charge alleging a new theory of recovery does not relate back to the original charge.” This is where the unusual procedural posture of Randstad comes into play: in Evans a plaintiff had sued his employer, and the court made finding as to the merits of his claims at the summary judgment stage. Randstad, on the other hand, involved the subpoena power of the EEOC – the court did not look at the merits of Mr. Morrison’s claims. Instead, the court was satisfied that the claims were plausible.
Employers should take heed: it is risky to refuse to comply with a subpoena issued by the EEOC. Not only did Randstad lose in costly litigation, but its refusal caused the EEOC to broaden the scope of its subpoena from one office in Hagerstown to 13 offices all over Maryland.