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EEOC v. Farmer’s Pride, Inc. — Use Care In Disclosing Documents to the EEOC

on Wednesday, 27 February 2013 in Labor & Employment Law Update: Sarah M. Huyck, Editor

EEOC v. Farmer’s Pride, Inc. illustrates why employers should be cautious in producing private employee information to the U.S. Equal Employment Opportunity Commission (“EEOC”) or its state counterparts. In the context of an investigation, the EEOC often seeks and may gain access to all kinds of private information only remotely related to an employee’s charge of discrimination. Once the EEOC has the information, plaintiffs’ attorneys may thereafter attempt to access the information and use it for their own purposes. Employers, therefore, should use care in what information they provide and may need to seek a protective order from a court to limit or protect information before producing it to the EEOC.

In Farmer’s Pride, a male employee, Christian Ramirez, alleged that his female supervisor, Adelaida Colon, sexually harassed him and other workers. Ramirez also alleged that two male supervisors, Juan Sosa and Jose Luis, acted inappropriately toward female workers. The EEOC commenced an investigation.

The EEOC requested the personnel information for all employees supervised by Colon, Sosa, and Luis during their employment. Specifically, the EEOC asked for a sortable Excel spreadsheet identifying all employees, from 2008 through the present, in Farmer’s Pride’s deboning department. Regarding those employees, the EEOC requested each employee’s name, last known address, last known telephone number, Social Security Number, hire date, starting position and department, subsequent positions and department, shift assignment for each position, and termination date, if applicable. The EEOC also requested all complaints of sexual harassment at Farmer’s Pride’s Fredericksburg facility since January 2008. Farmer’s Pride objected that the requests were irrelevant, overly broad, unduly burdensome, and would result in privacy violations. When Farmer’s Pride refused to comply with the EEOC’s subpoena requiring the production of the information, the EEOC sought court enforcement.

The United States District Court for the Eastern District of Pennsylvania noted that relevancy in the context of an EEOC investigation is not limited to what might be relevant at trial. The court also noted that the EEOC’s investigation is not limited to the allegations in a charge of discrimination. According to the court, “[t]he charge merely provides the EEOC with a jurisdictional springboard to investigate whether the employer is engaged in any discriminatory practices.”

There are several implications. First, the EEOC may find facts that support additional claims of discrimination unrelated to the charge. Second, the EEOC may investigate an entire facility, rather than the department or decision maker involved. Third, the EEOC may investigate a period of time broader than the employment period of the employees involved. In light of these principles, the court ordered Farmer’s Pride to comply with the EEOC’s subpoena. In other words, in the context of investigating a charge of discrimination, the EEOC may gain broad access to private employee information.

Once the EEOC has the information, other interested parties may attempt to gain access to it. Title VII generally prohibits any employee of the EEOC from disclosing to the public any information obtained during an investigation. The Privacy Act of 1974 also generally protects against public disclosure of EEOC charge files. There is an exception to the general rule, however, that allows charging parties or their attorneys, to access the information. Those persons may try to use the information for an improper purpose, such as union organizing or as a fishing expedition for unrelated litigation.

In Farmer’s Pride, for example, Farmer’s Pride was also involved in unrelated wage and hour litigation, Lugo v. Farmer’s Pride, Inc. (hereinafter Lugo). The court noted that Ramirez’s attorney, Liz Chacko, may have had ties to the Lugo matter as well. Farmer’s Pride submitted evidence of a general meeting attended by union representatives and Farmer’s Pride employees. Chacko’s assistant and the plaintiffs’ attorney in the Lugo matter also attended the meeting. Union representatives contacted employees to attend the meeting and passed out cards at the meeting asking the workers to indicate they wanted union representation.

Given these facts, the court was concerned that if Farmer’s Pride disclosed private personnel information to the EEOC, others would gain access to the information and use it for improper purposes, violating the employees’ privacy interests. The court, therefore, entered a protective order prohibiting the disclosure of the private contact information of Farmer’s Pride’s employees to the charging party, Ramirez, and his attorney, Liz Chacko.

The Farmer’s Pride decision provides important lessons and reminders for employers. While the EEOC has broad investigatory powers and may gain access to information that is only remotely related to a charge of discrimination, employers should take appropriate cautionary measures to protect confidential information which may include trying to negotiate with the EEOC to narrow the scope of such requests or to be allowed to produce the information in a more limited or redacted format. If necessary, an employer may need to seek protective orders to protect information, or move to quash or limit EEOC subpoenas in court, lest the information be used for improper or unrelated purposes.

Anthony D. Todero

Read the Full Newsletter: Labor & Employment Law Alert February 27, 2013

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