On February 27, 2012, the US Court of Appeals for the Tenth Circuit issued an opinion in Equal Employment Opportunity Commission v. Burlington Northern Santa Fe Railroad. The key litigated issue was whether the EEOC could enforce an administrative subpoena seeking a respondent employer's nationwide employment records where the EEOC:

In 2007, two men in Colorado separately filed disability discrimination charges with the EEOC, alleging that BNSF rescinded a conditional offer of employment following a medical screening procedure. BNSF responded that the job positions in question, Conductor and Conductor Trainee, had medical and safety requirements that the two applicants did not satisfy. BNSF stated that it did not consider the applicants to be disabled and they were free to apply for other positions with BNSF.

During the course of its investigation, the EEOC demanded BNSF's files containing electronic data about current and former employees throughout the US for the previous two years. When BNSF refused to provide this information, the EEOC served a subpoena on BNSF and stated that it was expanding its investigation to include pattern or practice discrimination. The EEOC did not explain why it expanded its investigation.

The EEOC sought to enforce the subpoena in the federal district court and provided an affidavit explaining it had received four similar complaints against BNSF in other states. However, the district court sustained BNSF's refusal to comply with the subpoena because there were no allegations of pattern and practice, and a demand for nationwide records was excessive if only two men in one state made similar allegations of discrimination. Essentially, the information sought by the subpoena was not relevant to the investigation of the two charges of discrimination.

The Tenth Circuit affirmed the district court's ruling because the nationwide recordkeeping data sought by the EEOC was not relevant to the charges of disability discrimination brought by the two Colorado job applicants.

The two individual charges of discrimination, along with the four others alleged by the EEOC in its affidavit, do not warrant a "pattern or practice" investigation. The EEOC subpoena referred only to the two applicants in Colorado and did not refer to any other charges against BNSF. The statute granting the EEOC authority to investigate charges of discrimination gives it access to evidence that is "relevant to the charge under investigation" (42 USC § 2000e-8(a) (2012)). Therefore, the relevance of information sought by the subpoena must be measured against the two charges brought in Colorado.

In light of this standard, the EEOC's subpoena was "incredibly broad" and not relevant. The Tenth Circuit explained that any act of discrimination could be part of a pattern or practice of discrimination, but that does not mean that every act of discrimination requires a pattern or practice investigation. Here, the charges did not allege a pattern or practice of discrimination. Furthermore, BNSF had no way of knowing which other charges supported the EEOC's expansive investigation in this case.

The EEOC cited several cases where a single charge of discrimination was used to justify a pattern or practice investigation, but the Tenth Circuit did not find any of them applicable to this case. In EEOC v. Konica Minolta Bus. Solutions U.S.A., Inc., 639 F.3d 366 (7th Cir. 2011), for example, the EEOC's pattern or practice investigation was lawful because:

Based on this precedent, the Tenth Circuit noted that the EEOC may have been entitled in this case to seek information relating to other offices and positions in Colorado. Aside from that possibility, the EEOC can investigate the claims of the two Colorado applicants and expand that investigation if it finds evidence suggesting a broader practice of discrimination by BNSF. The EEOC can also aggregate the information as a Commissioner's Charge. However, the district court did not abuse its discretion in holding that the EEOC could not demand such a large volume of information because it was not relevant to the two individual charges under investigation.

This case is instructive and helpful for employers facing administrative subpoenas from the EEOC that should be scrutinized for relevancy and scope.

For more information about responding to information requests from the EEOC, see Practice Note, Responding to Equal Employment Opportunity Commission Charges: Responding to the Administrative Agency's Request for Documents or Request for Additional Information.