Merriam-Webster Dictionary
defines “spam” as an “unsolicited usually commercial e-mail sent to a large
number of addresses” or “a canned meat product.” Another definition may now be “an aggressive
investigative tactic of the Equal Employment Opportunity Commission (“EEOC”)
which has been given a green light by the courts.”
On September
24, 2014, a U.S. District Court Judge in Washington, DC announced he will
dismiss a lawsuit over the Equal Employment Opportunity Commission (“EEOC”)
sending a blast of more than 1300 e-mails to a company’s employees, requesting
they supply information to the agency as part of an investigation into
allegations of age discrimination.
In my October
2013 post, “You’ve Got (Mass) Mail . . . From the EEOC?”, I discussed the
federal lawsuit filed by construction
equipment maker Case New Holland (“CNH”) in which the company alleged the EEOC unconstitutionally solicited or
“trolled” the company’s employees to become class members in a potential age
discrimination class action.
Prior to the
e-mail blitz, the company had cooperated with the EEOC’s investigative requests
by producing ten of thousands of page of documents and hundreds of thousands of
electronic documents. The company heard
nothing more from the agency for more than a year and a half, until the incident
that caused the company to sue the EEOC.
At 8:00 a.m. on
June 5, 2013, the EEOC conducted a mass e-mailing to the business e-mail
addresses of 1330 CNH employees across the United States and Canada. Over 200
of the recipients were members of management. The e-mail stated the EEOC was
conducting “a federal investigation” and making “an official inquiry” into
allegations that CNH discriminated against job applicants and employees, and
contained a link to an on-line series of questions regarding alleged
discrimination. It also asked for the employee’s birth date, address and telephone
number. The EEOC’s on-line survey instructed CNH employees to “Please complete
and submit this electronic questionnaire as soon as possible.”
The e-mail had
been sent without any advance notice to CNH and according to the lawsuit, the
mass mailing disrupted CNH’s business operations at the start of the workday
and communicated to employees they should cease their legitimate work duties
and instead immediately respond to the agency’s questions. A significant
concern was the company’s belief that the EEOC had deliberately cut the
employer out of the investigatory process, and had solicited members of
management, whose statements arguably could have bound the company.
CNH filed its
lawsuit on August 1, 2013, alleging that the EEOC’s mass e-mailing: (1) was not
authorized by any EEOC rule or regulation, (2) violated the federal
Administrative Procedure Act, (3) constituted an unreasonable search and
seizure in violation of the Fourth Amendment, (4) violated the takings clause
of the Fifth Amendment, and (5) violated the EEOC’s own compliance manual,
which requires that an employer be allowed to have a spokesman or attorney
present during an interview of management employees, and that advance notice be
given. The suit claims the EEOC engages in bullying tactics to force companies
into monetary settlements of questionable claims.
However, in his
ruling announcing his plans to dismiss CNH’s lawsuit, U.S. District Judge Reggie B. Walton stated that the
company lacked standing to bring the suit because it was not able to establish
how it was injured by the EEOC’s investigatory tactic, other than vague
allegations of business disruptions.
Judge Walton announced he would issue a written opinion dismissing the
case within the next two months. At this
time, the company has not announced if it plans to appeal the ruling.
Although the EEOC had never
before utilized e-mail at this scale to try and identify alleged victims of
discrimination, it had argued to the court that the tactic was clearly within
the agency’s investigatory authority.
With the U.S. District Court
giving the green light to the EEOC’s investigatory “spam”, at least for the
time being, it appears highly likely that employers will be seeing much more of
this tactic. From the EEOC’s
perspective, it is cheaper and quicker then actually sending investigators to a
workplace, and has the added benefit of being able to target thousands of
potential plaintiffs/class members with the click of a mouse. Also, as noted in CNH's lawsuit, it has the effect of allowing the EEOC to cut the employer out of the investigative process.
Mark Fijman is a labor and
employment attorney with Phelps Dunbar,
LLP, which has offices in Louisiana, Mississippi, Florida, Texas,
Alabama, North Carolina and London. To view his firm bio,
click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com
