E.E.O.C. v. Aon Consulting, Inc.

• Decision Date: 26 April 2001
• Docket Number: No. IP 01-38-MISC.,No. IP 01-37-MISC.,IP 01-37-MISC.,IP 01-38-MISC.
• Citation: 149 F.Supp.2d 601
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner, v. AON CONSULTING, INC. and Delphi Automotive Systems, Respondents.
• Court: U.S. District Court — Southern District of Indiana

149 F.Supp.2d 601

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner, v. AON CONSULTING, INC. and Delphi Automotive Systems, Respondents.

No. IP 01-37-MISC.

No. IP 01-38-MISC.

United States District Court, S.D. Indiana, Indianapolis Division.

April 26, 2001.

Jamie Darin Prenkert, for Plaintiff.

Michael Warner, Seyfarth, Shaw, Chicago, IL, for Defendant.

Jane Ann Himsel, Wooden & McLaughlin, LLP, Indianapolis, IN, for Defendant.

ENTRY ON EEOC'S APPLICATIONS TO ENFORCE SUBPOENAS

HAMILTON, District Judge.

In these two related subpoena enforcement actions, petitioner Equal Employment Opportunity Commission (EEOC) seeks an order compelling full compliance with subpoenas duces tecum it served on respondents Delphi Automotive Systems and Aon Consulting, Inc. Delphi and Aon Consulting are the respondents in several administrative charges filed by non-white job applicants who sought hourly positions at Delphi but were not hired. Aon Consulting has developed and administers tests that Delphi uses to screen job applicants. The screening procedure includes written tests, job simulation exercises and a structured interview form. In the administrative proceedings, the charging parties allege that the testing procedures are discriminatory.

The central issue is whether the EEOC should be required to keep confidential from the charging parties any employment tests and validation studies produced by respondents. As explained below, confidentiality of such documents is important not only to the respondents but also to compliance with laws against discrimination in employment. See generally Detroit Edison Co. v. NLRB, 440 U.S. 301, 313-15, 99 S.Ct. 1123, 59 L.Ed.2d 333 (1979). Accordingly, production of such documents to the EEOC must be on conditions that require the EEOC to keep the documents confidential, so that disclosure to the charging parties is prohibited during the EEOC's investigation.

Background

The EEOC issued subpoenas to both Delphi and Aon Consulting on December 13, 2000. The Aon Consulting subpoena calls for production of all tests and validation studies, as well as tests and related documents relating to specific applicants. Respondents contend that the tests and related documents are confidential and valuable, and that unrestricted disclosure of those documents would destroy the integrity and value of the tests. Respondents do not object to producing the tests and validation studies to the EEOC, but they seek legally enforceable assurances that the EEOC will keep the documents confidential. Pursuant to EEOC regulations, Delphi and Aon Consulting filed administrative petitions to revoke the subpoenas. On January 17, 2001, the EEOC denied those petitions. Delphi and Aon Consulting then supplemented their responses but still did not comply fully with the subpoenas.

The EEOC then filed these two actions to enforce its subpoenas pursuant to 42 U.S.C. § 2000e-9. The law requires the EEOC to maintain confidentiality of investigations in general, but there is a significant exception. The law allows the EEOC to share the results of its investigation with complaining parties, who are under no legal obligation to maintain confidentiality. The EEOC insists that if it obtains the tests and validation studies from Aon Consulting or Delphi, it has no intention of sharing those documents with the complaining parties. The EEOC also states that its regional office's current policy is not to share with complaining parties the documents obtained in investigations. Nevertheless, the EEOC does not wish to tie its hands with any legal obligations to maintain such confidentiality, so it has not agreed with Aon Consulting and Delphi to limit its ability to share the documents with the complaining parties.

The court held a hearing on April 10, 2001. At the hearing, the court ruled in favor of the EEOC on Request Nos. 1, 3, 5, and 6 of the Delphi subpoena and Request No. 2 of the Aon Consulting subpoena, which respondents had claimed were too burdensome. The court took under advisement the issue of the tests, validation studies, and related documents. (These issues correspond to Request Nos. 3, 4, 9, and 10 of the Aon Consulting subpoena.) The court now enforces the Aon Consulting subpoena to order production of the tests, validation studies, and related documents, but on the conditions that: (1) the EEOC not disclose the tests, validation studies or related documents to complaining parties; and (2) the EEOC return the tests, validation studies, related documents, and all copies 180 days after any right-to-sue letter or other notice concluding the investigation is issued, unless litigation ensues. These conditions are required because of the unusual need to maintain confidentiality of the tests and validation studies.

Discussion

Title VII grants the EEOC broad investigatory authority. See 42 U.S.C. § 2000e-8(a) (the EEOC "shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices"). This authority includes subpoena power. See 29 C.F.R. § 1601.16(a). The EEOC may apply to the district court in the jurisdiction where it is conducting an investigation for an order compelling production of subpoenaed information. 42 U.S.C. § 2000e-9; 29 U.S.C. § 161(2); 29 C.F.R. § 1601.16(c) & (d); EEOC v. City of Milwaukee, 54 F.Supp.2d 885, 890 (E.D.Wis. 1999).

Subpoena enforcement proceedings are summary in nature, and the court's role is "sharply limited." EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir.1987). As a general proposition, the court should enforce an administrative subpoena "if it seeks reasonably relevant information, is not too indefinite, and relates to an investigation within the agency's authority." EEOC v. Quad/Graphics, Inc., 63 F.3d 642, 645 (7th Cir.1995); accord, EEOC v. Shell Oil Co., 466 U.S. 54, 72 n. 26, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984) (court should satisfy itself that charge is valid and that material requested is relevant, and should assess respondent's contentions that request is too indefinite or is for improper purpose, but it would be error to assess likelihood that EEOC will be able to prove underlying claims).

A subpoena will not be enforced, however, if it is excessively burdensome— that is, if compliance would threaten the normal operation of a respondent's business. EEOC v. Quad/Graphics, Inc., 63 F.3d at 645; EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 313 (7th Cir.1981). The burden is on the party contesting enforcement of the subpoena to demonstrate that grounds for challenge exist. EEOC v. Quad Graphics, Inc., 63 F.3d at 649; EEOC v. Suburban Transit Sys., Inc., 538 F.Supp. 530, 533 (N.D.Ill.1982). Whether the subpoena should be enforced and under what conditions are matters within the trial court's sound discretion. EEOC v. Quad Graphics, Inc., 63 F.3d at 645, citing Dow Chemical Co. v. Allen, 672 F.2d 1262, 1267 (7th Cir.1982).

The disputed portions of the EEOC subpoena to Aon Consulting seek the following categories of documents:

Request No. 3—all tests, including small group assessment forms, questionnaires, and interview guides/questions used to test and screen candidates/applicants;

Request No. 4—all validation studies for all tests, group assessment procedures/processes and interviews used during the screening process; all materials utilized or submitted to another organization to evaluate the validation studies;

Request No. 9—test forms, interview forms, and assessment forms for 12 specified employees; and

Request No. 10—tests, assessments, and interviews of individuals who were given an opportunity to retake a test, group assessment and/or interview.

Delphi and Aon Consulting do not contend that these requests seek irrelevant information or that they are unduly burdensome, at least apart from confidentiality concerns. Instead, they argue that Aon Consulting should be permitted to produce the subpoenaed information pursuant to a protective order because the testing information sought is confidential and proprietary. The EEOC has declined to agree voluntarily to a protective order.

The EEOC contends that a protective order is unnecessary in this case because the law provides adequate protection to respondents. During the EEOC's investigation of a charge of discrimination, Title VII prohibits the EEOC from making public charges of discrimination or information obtained by the EEOC in its investigation. 42 U.S.C. §§ 2000e-5(b) & 2000e-8(e). EEOC personnel may face criminal penalties for such a disclosure. See id.; see also EEOC v. Bay Shipbuilding Corp., 668 F.2d at 312 (relying on § 2000e-8(e) to reject overbreadth objection based on confidentiality concerns about employee information).¹

The Supreme Court has held, however, that Section 2000e-8(e) does not prohibit the EEOC from disclosing information obtained in an investigation to a charging party. EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 598, 101 S.Ct. 817, 66 L.Ed.2d 762 (1981) (reversing district court's protective order barring disclosure to charging party of information in his own file).

The EEOC requires charging parties to sign nondisclosure agreements before they gain access to information that the EEOC obtained in an investigation. See Associated Dry Goods, 449 U.S. at 596-98 & n. 12, 101 S.Ct. 817, citing EEOC Compliance Manual § 83.3. That nondisclosure agreement allows the charging party to disclose information only through a lawsuit. See id. There is no indication, however, that such agreements have effective enforcement mechanisms where a charging party violates the agreement.

After the EEOC concludes an investigation, its investigative file may be the subject of a request for information under the federal Freedom of Information Act (FOIA). FOIA exempts from production "trade secrets and commercial or financial information obtained from...