If your company receives a subpoena from the EEOC, whatever you do, don’t do this…

There will come a time that one of your current or former employees will file a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission against your company.

So, you just received an EEOC Charge.

When your business receives that EEOC Charge, it often comes with a side of fries an EEOC directive that you respond to the Charge with a Position Statement. The EEOC may also require that you produce documents or other information relating to the EEOC Charge.

Most employers provide the requested information. But, for sure, some of those EEOC document requests can be burdensome. So, a few employers will try to negotiate a narrower document request with the EEOC. Still, others will flat out refuse to comply. For those that refuse to comply, the next step is a subpoena.

What not to do if an EEOC subpoena follows.

Now, pay attention.

I recently read a federal court opinion involving an employer that checked all the boxes:

• Named in EEOC Charge
• Received an onerous document request
• Unsuccessfully tried to narrow the document request with the EEOC
• Refused to produce the requested documents
• Served with an EEOC subpoena

But, there was a box it missed. A really important one.

The court cited a federal regulation that requires a party served with an EEOC subpoena to respond within five days with a petition. However, rather than petition the EEOC, the employer “only submitted a non-conforming, undated document entitled ‘Notice of Motion to Quash Subpoena,'” which the EEOC received after the five-day deadline. To boot, the employer failed to explain why it did not comply with the federal regulation governing the form and timing. Thus, for that reason alone, the Court required the employer to comply with the subpoena.

Actually, the court concluded that the employer’s substantive objections to the subpoena were baseless too. But, the procedural defects alone did the employer in.

What should you do when you receive an EEOC Charge or subpoena?

1. Do not ignore the EEOC Charge. Odds are it will not go away.
2. You may need an attorney. Quickly. So, call a lawyer. (Millenials, you can text or have someone call for you.)
3. If you have insurance to cover the claim, and you want coverage for the claim, put the carrier on notice if you haven’t done so already.
4. Often, the EEOC will offer an employer the opportunity to mediate. Strongly consider accepting that offer. I’m not just saying that because I am a volunteer EEOC mediator. Ok, maybe that has something to do with it. But, the program is very successful. Often, you can resolve the Charge and a get a general release for much less than it would cost to litigate the claim in court.
5. But, let’s say you don’t settle or don’t want to mediate. If you receive some onerous EEOC document requests, don’t ignore them or provide some perfunctory response. Contact the EEOC investigator and politely explain why the EEOC should narrowly-tailor its request. I find that you catch more flies with honey.
6. Finally, if you’re at loggerheads and the EEOC serves you with a subpoena, follow the rules for responding to the subpoena!

Here’s the thing. Not only did the company lose. The case I referenced in today’s post dates back to an EEOC Charge filed in 2013. The case wound its way up and down the federal court system until the court decided the subpoena issue last week. How much do you think that the employer paid its lawyers to litigate this subpoena matter, only to have to produce the documents eventually anyway?