The Equal Employment Opportunity Commission's (EEOC) systemic discrimination initiative got a shot in the arm Nov. 19, 2009, when the 2nd Circuit boosted the agency's power to subpoena an employer's nationwide employment records.
When the EEOC launched its systemic discrimination initiative in 2006, it said it would focus on patterns of unlawful bias throughout a company's operations, rather than on individual complaints of discrimination. In practice, that has meant taking one or two charges as an indication of broader discrimination and seeking enterprise-wide records from an employer to try to make that case.
UPS argued that it rejected the first employee because he did not provide a valid Social Security number and that it accommodated the second, so the two charges did not justify nationwide discovery. But the appeals court rejected that defense.
"UPS's arguments as to the merits do not prevent the EEOC from investigating those charges," the court said. "Indeed, at the investigatory stage, the EEOC is not required to show that there is probable cause to believe discrimination occurred or to produce evidence to establish a prima facie case of discrimination." The court cited a 1984 Supreme Court case, EEOC v. Shell Oil Co., in which the high court said the EEOC's ability to carry out systemic discrimination investigations must not be impaired.