21 Jan 24

Employment Law: Handling EEOC Subpoenas in Federal Discrimination Cases

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Last Updated on: 21st January 2024, 10:46 pm

Employment Law: Handling EEOC Subpoenas in Federal Discrimination Cases

When an employee files a discrimination charge with the Equal Employment Opportunity Commission (EEOC), the agency often issues subpoenas to the employer as part of its investigation. These administrative subpoenas require the employer to produce documents and information relevant to the discrimination allegations. Employers who receive an EEOC subpoena should take it seriously and handle it appropriately to avoid potential legal consequences.

Overview of EEOC Investigations and Subpoenas

The EEOC enforces federal laws prohibiting employment discrimination based on race, color, religion, sex, national origin, age, disability or genetic information [(]. When an employee files a charge, the EEOC investigates by issuing a subpoena to obtain evidence from the employer. The subpoena compels the employer to provide documents, answers to interrogatories, or testimony that may be relevant to proving or disproving the discrimination allegations [(].The EEOC may issue subpoenas at any point during an investigation, either before or after interviewing witnesses. Subpoenas often seek personnel files, hiring data, internal complaints or investigations related to the charging employee, and company policies and procedures related to the alleged discrimination.If an employer does not comply with an EEOC subpoena, the agency can petition a federal court to enforce it. Failing to comply puts the employer at risk of court-imposed sanctions [(]. Thus, employers should have a strategy for responding appropriately.

Receiving and Assessing an EEOC Subpoena

When an EEOC subpoena arrives, the employer’s first step should be to carefully review the contents. This includes assessing:

  • The scope of the request – Does it seek only information directly related to the discrimination allegations or the charging employee? Or does it encompass broader information?
  • Burden and cost – How much time, effort and resources will it require to gather the requested information?
  • Privilege issues – Does the request include potentially privileged information like attorney-client communications?

Thoroughly assessing the subpoena helps determine whether it may be necessary to negotiate the scope or seek modifications before producing documents [(]. Consulting with an attorney is highly advisable.

Seeking Modifications of an EEOC Subpoena

If a subpoena seems overly broad or unduly burdensome, the employer can push back by contacting the EEOC investigator to discuss modifying the request. This negotiation may result in narrowing the scope. Some common areas for negotiation include:

  • Limiting the timeframe for responsive information
  • Excluding irrelevant departments or facilities
  • Sampling data rather than producing large data sets
  • Protecting legally privileged documents

If informal negotiation fails to modify the subpoena appropriately, employers can formally petition the EEOC district director to revoke or limit the subpoena. However, the EEOC often denies such petitions, which requires the employer to take the dispute to federal court [(].

Producing Documents in Response to an EEOC Subpoena

Once the employer finishes negotiating the subpoena’s scope, the next step is gathering responsive information for production. Employers should develop a written plan and timeline for collecting documents. They should also implement procedures to ensure thoroughness and prevent spoliation of relevant evidence.When producing records, employers should organize them clearly, such as indexing and labeling files. They should also indicate whether any requested records are being withheld due to privilege or other objections. Withholding documents without identifying them can risk sanctions for non-compliance.In addition to document production, EEOC subpoenas may require employers to answer interrogatories or provide witness testimony. Employers should prepare for these responsively, such as by developing question-and-answer outlines for witnesses.

Preserving Confidentiality

Employers naturally have concerns about turning over sensitive information to a government agency like EEOC. However, employers can request confidentiality protections by asking the EEOC to designate certain responsive records as “confidential”. This helps shield documents like trade secrets or private employee information from public disclosure [(–now-what)].Even without a confidentiality designation, EEOC investigations are not public. The agency cannot disclose witness interviews or documents gathered during an investigation to other charging parties or third parties. However, confidentiality risks increase if the EEOC takes enforcement action in court following its investigation.

Consequences of Non-Compliance

Failing to comply with an EEOC subpoena, either by refusing to respond or by responding inadequately, exposes employers to significant legal consequences [(]. If negotiations do not produce satisfactory modifications, the EEOC can petition a federal court for an order enforcing the subpoena.At an enforcement proceeding, employers must prove the information sought is irrelevant to the charge or that producing it would be unduly burdensome. This is a difficult legal standard, so courts typically order enforcement.If an employer violates a court-ordered subpoena, the court can impose monetary penalties or even find the employer in contempt. Further, refusing to comply allows the EEOC to draw an adverse inference that the withheld information would have supported the discrimination allegations [(]. This harms the employer’s position and undermines their defense.

Takeaways for Employers

Receiving an EEOC subpoena signals serious exposure to liability in an employment discrimination lawsuit. Employers should promptly consult employment counsel when served with a subpoena. With an attorney’s guidance, employers can appropriately navigate the EEOC’s investigative demands while mitigating legal and reputational harm.Key steps include thoroughly reviewing the subpoena, raising confidentiality protections, negotiating reasonable modifications if necessary, timely collecting responsive records, indicating any objections, and producing documents and information as required within the deadlines. Refusing or failing to respond adequately to an EEOC subpoena only makes the situation worse for employers. Engaging counsel for an informed response is essential.


EEOC SubpoenaVideo explaining the EEOC subpoena process: on best practices for responding to EEOC subpoenas: motion to modify an EEOC subpoena: