TABLE OF AUTHORITIES............................................................................. ii

INTRODUCTION............................................................................................. 1

ARGUMENT.................................................................................................... 3

I. The EEOC is Entitled to Investigate TriCore’s Admitted Violation of the ADA.............................................................................................. 3

II. The EEOC is Entitled to Comparative Evidence Allowing It to Assess Guadiana’s Charge...................................................................... 10

III. Privacy Concerns Do Not Justify TriCore’s Noncompliance with the Subpoena..................................................................................... 20

CONCLUSION............................................................................................... 26

CERTIFICATE OF COMPLIANCE............................................................... 28

ELECTRONIC FILING CERTIFICATE......................................................... 29

Table of Authorities

Page(s)

Cases

Blue Bell Boots, Inc. v. EEOC,
418 F.2d 355 (6th Cir. 1969)................................................................. 2, 12

EEOC v. Associated Dry Goods Corp.,
449 U.S. 590 (1981)............................................................................. 23, 24

EEOC v. Bay Shipbuilding Corp.,
668 F.2d 304 (7th Cir. 1981)..................................................................... 11

EEOC v. Burlington Northern Santa Fe Railroad,
669 F.3d 1154 (10th Cir. 2012)........................................................... passim

EEOC v. Cambridge Tile Manufacturing Co.,
590 F.2d 205 (6th Cir. 1979)............................................................. 8, 9, 10

EEOC v. Citicorp Diners Club, Inc.,
985 F.2d 1036 (10th Cir. 1993)................................................................. 11

EEOC v. Dillon Cos.,
310 F.3d 1271 (10th Cir. 2002)................................................................. 10

EEOC v. General Electric Co.,
532 F.2d 359 (4th Cir. 1976)................................................................. 3, 10

EEOC v. Konica Minolta Business Solutions U.S.A., Inc.,
639 F.3d 366 (7th Cir. 2011)............................................................... passim

EEOC v. Kronos Inc.,
620 F.3d 287 (3d Cir. 2010)................................................................ 12, 16

EEOC v. Maritime Autowash, Inc.,
820 F.3d 662 (4th Cir. 2016)..................................................................... 16

EEOC v. McLane Co.,
804 F.3d 1051 (9th Cir. 2015)............................................................. passim

EEOC v. Morgan Stanley & Co.,
132 F. Supp. 2d 146 (S.D.N.Y. 2000)....................................................... 24

EEOC v. Randstad,
685 F.3d 433 (4th Cir. 2012)..................................................................... 19

EEOC v. Royal Caribbean Cruises, Ltd.,
771 F.3d 757 (11th Cir. 2014)............................................................. 18, 19

EEOC v. Shell Oil Co.,
466 U.S. 54 (1984)........................................................................... 2, 10, 13

General Telephone Co. of the Northwest, Inc. v. EEOC,
446 U.S. 318 (1980)..................................................................................... 9

Smith v. Midland Brake, Inc.,
180 F.3d 1154 (10th Cir. 1999) (en banc)............................................ 3, 4, 7

U.S. Airways, Inc. v. Barnett,
535 U.S. 391 (2002)..................................................................................... 5

University of Pennsylvania v. EEOC,
493 U.S. 182 (1990)................................................................... 8, 18, 21, 24

Young v. United Parcel Service, Inc.,
575 U.S. ---, 135 S. Ct. 1338 (2015).............................................. 14, 15, 17

Statutes

Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101-12117............................................................................................................ passim

42 U.S.C. § 12111(9)(B).............................................................................. 3

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 14, 24, 25

42 U.S.C. § 2000e-12................................................................................. 25

42 U.S.C. § 2000e(k)........................................................................... 11, 15

Freedom of Information Act (FOIA), 5 U.S.C. § 552............................... 25, 26

5 U.S.C. § 552(b)(3)................................................................................... 26

Privacy Act of 1974, 5 U.S.C. § 552a(b)........................................................ 26

Trade Secrets Act, 18 U.S.C. § 1905.............................................................. 26

Other Authorities

29 C.F.R. § 1601.12(b)................................................................................... 16

29 C.F.R. § 1601.22........................................................................... 23, 24, 25

29 C.F.R. § 1610.19....................................................................................... 25

EEOC Compliance Manual, Vol. I, § 22........................................................... 2

EEOC Compliance Manual, Vol. I, § 22.3........................................................ 5

EEOC, “Effective Position Statements,” available at https://www.eeoc.gov/employers/position_statements.cfm........................ 23

EEOC FOIA Reference Guide § XI, available at http://www.eeoc.gov/eeoc/foia/hb-11.cfm.................................................................................................. 25, 26

INTRODUCTION

As the Commission explained in its opening brief, the district court’s decision not to enforce the EEOC’s administrative subpoena for lack of relevance to the charging party’s claims erred in two ways. First, in its failure specifically to address the subpoena’s first request, the ruling disregarded the Commission’s authority to broaden its investigation based on legal violations it discovers in the process of investigating a charge. See EEOC v. Burlington N. Santa Fe R.R., 669 F.3d 1154, 1159 (10th Cir. 2012) (“Nothing prevents the EEOC from investigating the charges filed by [the charging parties], and then – if it ascertains some violation warranting a broader investigation – expanding its search.”); EEOC v. McLane Co., 804 F.3d 1051, 1055 (9th Cir. 2015) (“If new facts come to light during an investigation, the EEOC may expand its scope beyond the practices specified in the original charge.”). Second, in holding that comparator evidence was not relevant to the charging party’s claims of pregnancy and disability discrimination, the court applied an excessively restrictive definition of relevance – one that does not permit the use of comparative evidence in an investigation. As numerous cases have held, however, such comparative evidence is often essential to contextualize a charging party’s claim and allow the EEOC to evaluate it. See, e.g., McLane, 804 F.3d at 1058 (noting that the experiences of other employees “might cast light on the allegations against [the employer],” allowing the EEOC to assess those allegations); Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969) (noting the relevance of other employees’ experiences to the charging party’s allegations); EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 & n.20 (1984) (citing Blue Bell Boots in support of its conclusion that the EEOC is entitled to “virtually any material that might cast light on the allegations against the employer”).

Disregarding these authorities, TriCore argues in its Answer Brief (Opp.) that the EEOC cannot show the information it subpoenaed is relevant to Guadiana’s charge. TriCore claims that the EEOC must instead be investigating a separate “pattern or practice” claim, which it lacks the evidence to justify. A fair reading of the subpoena and the expansion letter show, however, that this is simply not the case. The EEOC’s subpoena contains two requests: one relating to admissions TriCore made about its policies, and the other relating to TriCore employees who can provide direct comparative evidence. These are the same grounds the EEOC gave to TriCore for expanding the scope of its investigation and exactly the type of expansion contemplated in Section 22 of its Compliance Manual, the material the EEOC cited to TriCore as the basis for the expansion. Because the subpoena requests are well within the EEOC’s statutory authority, this Court should reverse the district court’s ruling and enforce the subpoena in full.

ARGUMENT

I. The EEOC is Entitled to Investigate TriCore’s Admitted Violation of the ADA.

As is by now well-established, the EEOC has the authority to pursue violations it discovers in the course of investigating a charge of discrimination. Burlington N., 669 F.3d at 1159; McLane, 804 F.3d at 1055; EEOC v. Gen. Elec. Co., 532 F.2d 359, 364 (4th Cir. 1976) (noting that an EEOC investigation “may well disclose, as in this instance, illegal practices other than those listed in the charge and provide a basis for a reasonable cause determination with respect to those practices” (internal citation and quotation marks omitted)). That is precisely what happened here. The EEOC’s investigation of Guadiana’s charge revealed that TriCore has an apparent policy of responding to reasonable accommodation requests by informing the requesting employee that she is free to apply for open positions and then considering her for those other positions in competition with other applicants. Such a policy is in violation of the ADA, which requires reassignment of a qualified employee to a vacant position absent a showing of undue hardship. See 42 U.S.C. § 12111(9)(B); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164 (10th Cir. 1999) (en banc). Tellingly, neither TriCore nor the amicus curiae mentions Section 12111(9)(B) or Midland Brake in response to the EEOC’s opening brief, tacitly acknowledging the strength of the EEOC’s position.

The EEOC’s discovery of TriCore’s apparent violation was based not on some previously undisclosed evidence, as TriCore suggests (Opp. at 22-23), or the theoretical possibility that any single violation could be part of a larger pattern of discrimination (Amicus Curiae Brief (Amic. Br.) at 17), but instead on TriCore’s own repeated admissions. TriCore’s position statement to the EEOC acknowledged that the company responded to Guadiana’s first request for a reasonable accommodation by agreeing to interview Guadiana and other candidates for an open position “and select the most qualified candidate.” Appellant’s Appendix (AA.) 31 (TriCore Position Statement at 4). It responded to her second reasonable accommodation request by informing her “that there were a variety of open positions available, and she needed to apply for whichever position met her needs.” AA.33 (TriCore Position Statement at 6). During oral argument, TriCore’s counsel freely admitted Guadiana was allowed only the option of applying for open positions, and received no preferential consideration.[1] AA.127 (Hearing Trans. at 18); cf. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002) (“By definition any special ‘accommodation’ requires the employer to treat an employee with a disability differently, i.e., preferentially.”).

TriCore’s actions in this respect reflect considered company policy, rather than the rogue actions of a single individual. Its first response to Guadiana’s reasonable accommodation request resulted from a meeting between two supervisors, a human resources manager and a human resources generalist. AA.31. The second response came after “Ms. Guadiana’s management team” and “TriCore’s Human Resources Department” considered the issue. AA.32-33. Based on these admissions, the EEOC was entitled to extend its investigation to determine the extent of such a policy and the frequency of its application. Burlington N., 669 F.3d at 1159; McLane, 804 F.3d at 1055; see also EEOC Compliance Manual Vol. I, § 22.3 (“The [Request for Information] will implicitly identify the initial scope of the investigation; however, the respondent should be informed that the scope may be expanded or limited based on information received during the investigation.”).[2] The Commission therefore sought information that would allow it to speak with other employees who had requested a disability-related accommodation to learn how TriCore responded to such requests. In denying the subpoena in its entirety without addressing this argument, the district court committed reversible error.

TriCore claims that the EEOC is raising these issues for the first time on appeal. Opp. at 21-25 (claiming the EEOC is making these arguments “for the first time” and that these arguments refer to “undefined other ‘violations’” and constitute “an evolving theory” of “new justifications” or “alternative justifications” for the subpoenaed information). In fact, the EEOC consistently made this exact argument, citing Burlington Northern, in denying TriCore’s Petition to Revoke the Subpoena (AA.71-72), in its initial brief to the district court (AA.16), and in its reply brief to the district court (AA.87-88). The Commission’s basis for further investigation is and always has been TriCore’s admissions in its position statement – admissions TriCore repeated during oral argument before the district court. TriCore’s contention that the Commission is raising this argument for the first time on appeal is simply wrong and, frankly, mystifying. TriCore also objects that the Commission’s arguments based on this material somehow constitute “an attempt to evade” the relevance requirement, Opp. at 21, but fails to explain how the EEOC’s citation to precedents from the Supreme Court, this Court and other circuit courts interpreting the relevance requirement constitutes “evasion.” [3]

Although it is not entirely clear, TriCore apparently hopes to draw a distinction between the EEOC’s statements to the district court that TriCore seemed to have a policy of violating the ADA and its argument on appeal that its investigation revealed evidence of a possible violation. See Opp. at 22 (contending the EEOC’s “new justifications about alleged evidence of ‘violations’” differ from the EEOC’s contentions during administrative proceedings and before the district court that the information “suggests” and presents “a possibility” of an ongoing violation); id. at 24 (referring to “the EEOC’s evolving theory”). No such distinction exists. At every stage of this litigation the EEOC has maintained that TriCore’s admissions strongly imply the existence of an ongoing violation, but the EEOC cannot conclusively determine the scope or extent of such a violation without further investigation.[4] See AA.71-72 (administrative determination); AA.16 (district court opening brief); AA.87-88 (district court reply). It is the same argument the EEOC made in its Opening Brief on appeal: TriCore’s response to Guadiana’s reasonable accommodation requests “likely reflected [its] general policy and/or practice” (App. Br. at 15), a policy that was “apparently illegal” (id. at 10) and “may have violated the ADA” (id. at 16), but the Commission cannot draw such a conclusion categorically without more evidence. Indeed, this is precisely why the EEOC subpoenaed the information. TriCore has no basis whatsoever for its claim that this represents a change of argument on appeal.

TriCore further contends that a “single, isolated, individual allegation of discrimination” cannot give rise to a broader investigation of a company’s practices, regardless of the violations uncovered during the investigation of that charge. Opp. at 23. Not surprisingly, it provides no authority for this remarkable claim. As explained above, TriCore’s admissions during the investigation strongly implied that its response to Guadiana’s requests for a reasonable accommodation were in accord with a company-wide policy that is at odds with the ADA. When faced with such clear evidence of a “violation warranting a broader investigation,” there is no reason to require the presence of an additional charging party bringing the same claim before the EEOC may investigate further. Burlington N., 669 F.3d at 1159; McLane, 804 F.3d at 1055; EEOC v. Cambridge Tile Mfg. Co., 590 F.2d 205, 206 (6th Cir. 1979). TriCore does not and cannot justify the judicial creation of such an additional procedural hurdle. Cf. Univ. of Pa. v. EEOC, 493 U.S. 182, 194 (1990) (rejecting an employer’s attempt to “place a substantial litigation-producing obstacle in the way of the Commission’s efforts to investigate and remedy alleged discrimination”).

Elsewhere, TriCore seems to assert that because it admitted its behavior toward Guadiana may have violated the ADA, the EEOC has no basis to investigate whether the application of its policy similarly violated the ADA rights of other employees. Opp. at 17. Again, this argument is not supportable. TriCore’s novel theory would allow an employer to avoid any further investigation into its activities simply by admitting to having discriminated against a single individual. Indeed, even if the employer expressly admitted that it violated the law pursuant to an explicit company policy, under TriCore’s view the EEOC would be precluded from pursuing an investigation beyond the initial charge and could not ask about the employer’s treatment of anyone but the charging party. Such an extraordinary requirement runs counter to the clear holdings of Burlington Northern, McLane, Cambridge Tile, and numerous other cases. In addition, it flies in the face of the EEOC’s statutory authority to act “to vindicate the public interest in preventing employment discrimination” while simultaneously working “at the behest of and for the benefit of specific individuals.” Gen. Tel. Co. of the NW, Inc. v. EEOC, 446 U.S. 318, 326 (1980).

In sum, TriCore admitted during the EEOC’s investigation that it violated the ADA in response to Guadiana’s requests for a reasonable accommodation. (Unchastened, TriCore reaffirms its commitment to this violation in its Answer Brief. See Opp. at 22 n.10.) The EEOC served its first subpoena request to determine the scope and extent of TriCore’s violation, as it is permitted to do under the ADA. See Burlington N., 669 F.3d at 1159, McLane, 804 F.3d at 1055; Cambridge Tile, 590 F.2d at 206; Gen. Elec. Co., 532 F.2d at 364-66. This is not a new theory presented on appeal. Nor is the EEOC precluded from pursuing this inquiry merely because it stemmed from a single charge or because TriCore admitted the violation as to Guadiana. Thus, the district court’s refusal to enforce the first subpoena request was erroneous and should be reversed.

II. The EEOC is Entitled to Comparative Evidence Allowing It to Assess Guadiana’s Charge.

In determining whether an EEOC subpoena is relevant to an individual’s charge, the question is whether the requested material “might cast light on the allegations against the employer.” Shell Oil, 466 U.S. at 68-69. Whether the employer will ultimately have a valid defense to the charge should not be a part of the court’s analysis. Id. at 72 n.26; EEOC v. Dillon Cos., 310 F.3d 1271, 1277 (10th Cir. 2002) (“We will not . . . either encourage or allow an employer to turn a summary subpoena-enforcement proceeding into a mini-trial by allowing it to interpose defenses that are more properly addressed at trial.”).

Guadiana alleged that TriCore discriminated against her on the basis of pregnancy and disability.[5] To evaluate these charges the EEOC subpoenaed information to help it obtain comparative evidence about similarly situated pregnant employees without a disability and similarly disabled non-pregnant employees.[6] This material is necessary to help the EEOC answer several questions: Was Guadiana treated differently, based on her disability, compared with other pregnant employees? Was she treated differently, based on her pregnancy, compared with other similarly disabled employees? To the extent she was treated differently, was this differential treatment pursuant to a general company policy?

TriCore repeatedly argues the requested material is irrelevant because it does not “directly affect[]” the charging party,[7] Opp. at 4, 14, but comparative information about the experiences of other employees provides crucial context for Guadiana’s experiences; as such, the material is directly relevant to her charge. In pursuing this material, the EEOC conducted its investigation in a manner that courts have repeatedly endorsed. See, e.g., McLane, 804 F.3d at 1058 (“[O]ther employees’ experiences might cast light on the allegations against [the employer], whether by substantiating them or showing them to be unfounded. Information that helps the EEOC determine whom to contact to learn more about [the employer’s actions] is therefore relevant to the investigation.”); EEOC v. Kronos Inc., 620 F.3d 287, 298 (3d Cir. 2010) (“The EEOC is entitled to information that ‘may provide a useful context’ for evaluating employment practices under investigation, in particular when such information constitutes comparison data.” (internal citation omitted)); Blue Bell Boots, 418 F.2d at 358 (holding that an employer’s actions with respect to other employees are relevant to an employee’s individual charge of racial discrimination). TriCore argues that Blue Bell Boots is contrary to Burlington Northern’s holding that the EEOC is only entitled to material relevant to the charge under investigation, Opp. at 21 n.8, but the two cases are fully compatible: such comparative evidence is relevant, as the Supreme Court showed by citing Blue Bell Boots approvingly in its discussion of relevance in Shell Oil. See Shell Oil, 466 U.S. at 68-69 & n.20 (citing Blue Bell Boots in support of its conclusion that the EEOC is entitled “to virtually any material that might cast light on the allegations against the employer”). Given the clear relevance of this comparative material, the district court’s contrary holding was erroneous as a matter of law.

An investigation into other employees’ experiences is especially relevant in a case of alleged discrimination based on a particular characteristic, such as pregnancy. As the Seventh Circuit explained in EEOC v. Konica Minolta Business Solutions U.S.A., Inc., information about discrimination against others in the same protected group is relevant to the assessment of an individual charge of discrimination. 639 F.3d 366, 369 (7th Cir. 2011). TriCore attempts to distinguish Konica Minolta on the grounds that “the charge and investigation … alleged both individual discrimination and a pattern of discrimination.” Opp. at 25 n.12. This is incorrect. The charging party in Konica Minolta alleged that he had been subjected to different terms and conditions of employment based on his race, discriminatorily disciplined, and fired for complaining about the discrimination. Konica Minolta, 639 F.3d at 367. His charge made no mention of a “pattern of discrimination” pertaining to anyone else. Once the EEOC began investigating, it uncovered facts that led it “to suspect that Konica might have engaged in discriminatory hiring practices,” and it asked for information about those hiring practices. Id. at 368. Just like TriCore does here, Konica refused to comply with the subpoena because, it argued, this “information … is not relevant to [the charging party’s] charge of discrimination.” Id. at 369. The court flatly rejected this argument, explaining,

When the EEOC investigates a charge of race discrimination for purposes of Title VII, it is authorized to consider whether the overall conditions in a workplace support the complaining employee’s allegations. Racial discrimination is “by definition class discrimination,” and information concerning whether an employer discriminated against other members of the same class for the purposes of hiring or job classification may cast light on whether an individual person suffered discrimination.

Id. (internal citation omitted). Here, similarly, TriCore’s treatment of other pregnant employees will clearly “cast light” on whether it discriminated against Guadiana.

Indeed, the Supreme Court recently emphasized in Young v. United Parcel Service, Inc. that such comparator evidence is particularly relevant in cases of alleged pregnancy discrimination. 575 U.S. ---, 135 S. Ct. 1338, 1354 (2015). A pregnant individual seeking to establish a discriminatory denial of a requested accommodation may do so by showing that her employer did not accommodate her but accommodated others who were “similar in their ability or inability to work.”[8] Id. (internal quotation marks omitted).[9] Similarly, as noted above, the experiences of other pregnant employees may help the EEOC determine that Guadiana’s experiences are common among pregnant employees at TriCore, or alternatively that her experiences seem to be specifically related to her disability. See, e.g., Konica Minolta, 639 F.3d at 369 (noting that discrimination against others in the same class “may cast light on whether an individual person suffered discrimination”); McLane, 804 F.3d at 1057 (explaining how speaking with similarly situated individuals “might cast light” on the allegations against the employer). Given the Young framework and the precedents indicating the importance of comparators’ experiences, the EEOC “has a ‘realistic expectation rather than an idle hope’ that the … materials it seeks will illuminate the facts and circumstances surrounding [the charging party’s] allegations of … discrimination.”[10] Konica Minolta, 639 F.3d at 370.

TriCore chides the EEOC for giving “generic” responses to questions about the material’s relevance, Opp. at 6, but of course the Commission cannot provide specifics about the contents of the requested information before receiving it. Without talking to the comparators, the EEOC cannot know what they will say – this is precisely why the requested information is so important. As the Fourth Circuit recently observed, “At the point where an investigation has barely started and no lawsuit has been filed, the EEOC … is hard-pressed to determine the validity of the charges.” EEOC v. Maritime Autowash, Inc., 820 F.3d 662, 667 (4th Cir. 2016). Again, information from comparators may bolster the charging party’s claims, or may show them to be unfounded. But the EEOC will not know until it performs its statutorily required duty and conducts its investigation. See McLane, 804 F.3d at 1057.

TriCore also argues that any search for comparative evidence would be fruitless because Guadiana’s “multi-faceted medical restrictions are unique.” Opp. at 19; see id. at 22 n.10. Under this theory, an employer would always be shielded from investigation so long as it could argue that an employee alleging discrimination was somehow “unique.” This is not the applicable standard. As the Supreme Court has explained, an employee alleging discrimination is not required “to show that those whom the employer favored and those whom the employer disfavored were similar in all but the protected ways.” Young, 135 S. Ct. at 1354. In addition, the EEOC is not required to take TriCore’s word for who is or is not comparable; it may make its own determinations of comparability. “Congress has not left it to employers accused of discrimination to decide what evidence may be necessary for the EEOC to complete its investigation.” McLane, 804 F.3d at 1057 (citing Univ. of Pa., 493 U.S. at 188, 193).

The amicus similarly argues that the EEOC must focus exclusively on “whether Guadiana is a qualified individual with a disability entitled to the ADA’s protections,” contending that this inquiry precludes investigation into the experience of comparators. Amic. Br. at 16, 18-22. Notably, it does not confront the EEOC’s argument in its opening brief about the value of comparator information and does not mention – let alone attempt to distinguish – the cases the EEOC relies on in establishing the importance of comparator material to determining the validity of a charge of discrimination. Again, the Supreme Court has held that the EEOC alone determines how best to conduct its investigation: “Clearly, an alleged perpetrator of discrimination cannot be allowed to pick and choose the evidence which may be necessary for an agency investigation.” Univ. of Pa., 493 U.S. at 193 (internal citation and quotation marks omitted). To the extent the amicus attempts to dismiss plainly relevant comparator information as “a thinly-veiled attempt to ‘fish’ for potential victims,” Amic. Br. at 16, it has no support for such an allegation.

TriCore devotes much of its Answer Brief to its argument that EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757 (11th Cir. 2014), an Eleventh Circuit case, justifies its refusal to comply with the subpoena. As the EEOC explained in its opening brief, however, Royal Caribbean is clearly distinguishable. The charging party in that case alleged his employer discriminatorily refused to renew his contract because he had been diagnosed with HIV and Kaposi Sarcoma, a cancer associated with AIDS. The EEOC subpoenaed information about other employees who had been discharged or not rehired for medical reasons. The employer complied with respect to its American employees but did not provide information about its employees from other countries. Id. at 759-60. On appeal, the Eleventh Circuit refused to enforce the subpoena as to foreign employees suffering from any medical condition because it concluded this information did not bear sufficiently on the charging party’s HIV- and AIDS-based claim, id. at 761-62, because the subpoena might raise difficult jurisdictional concerns, id. at 762-63, and because the employer provided evidence indicating that compliance with the subpoena would pose an undue hardship, id.

None of those concerns is present here. The requested material is necessary to allow the EEOC to compare Guadiana’s claims with the experiences of other similarly situated employees, the information involves no jurisdictional issues, and TriCore has not even attempted to show that compliance would pose an undue hardship. See Konica Minolta, 639 F.3d at 371 (“A conclusory statement that an EEOC request is burdensome is insufficient to overcome the presumption that [the employer] must comply with the subpoena.”); EEOC v. Randstad, 685 F.3d 433, 451 (4th Cir. 2012) (“The burden of proving that an administrative subpoena is unduly burdensome is not easily met.… The party subject to the subpoena must show that producing the documents would seriously disrupt its normal business operations.” (internal quotation marks omitted)). Although the amicus refers to the requested evidence as “wide-ranging” and “voluminous” (Amic. Br. at 14, 26), TriCore itself makes no such assertions.

Finally, TriCore argues that the EEOC conceded before the district court that it “conduct[s] broad, company-wide investigations based on individual charges of discrimination” in every case, and that such investigations constitute administrative overreach. Opp. at 10; see also Amic. Br. at 23 (“The EEOC conceded … that information on other employees was being sought for all charges of discrimination….”). To the contrary, the EEOC agreed only that it is “customary” to seek information about other employees’ experiences when it investigates an individual’s discrimination charge because such information is often useful to determine whether or not a charge is supported. AA.146; see McLane, 804 F.3d at 1056-57 (noting the utility of speaking with other employees about their experiences when evaluating a charge of discrimination). Nothing in the EEOC’s statement supports the district court’s conclusion that such information is “now being sought for all cases,” AA.107, and it certainly does not support TriCore’s wholly unsubstantiated and offensive argument that the EEOC “conduct[s] fishing expeditions in all investigations through the use of subpoenas seeking large data sets without regard to ‘relevancy’ … [i]n an apparent effort to meet new systemic quotas ….” Opp. at 11.

III. Privacy Concerns Do Not Justify TriCore’s Noncompliance with the Subpoena.

The EEOC explained in its opening brief that privacy concerns are not a valid reason to refuse to enforce a subpoena. The Supreme Court confronted and rejected this argument in University of Pennsylvania v. EEOC, 493 U.S. 182 (1990). In that case, the Court concluded that, although privacy concerns are certainly important, Congress already took them into account in crafting the statutory balance by allowing the EEOC access to the material but imposing fines or criminal penalties for a failure to protect it. Id. at 192-93. If this balance is to be changed, it is up to Congress to do so, not to the courts or a private employer who would prefer not to participate in an investigation into allegations that it has discriminated against its employee. See McLane, 804 F.3d at 1058.

TriCore asserts in its Answer Brief that Congress struck the statutory balance before hackers obtained a large amount of data from the Office of Personnel Management, highlighting the possibility that government information may not always be secure. Opp. at 27. It complains that a hypothetical data breach of EEOC files “would cause great harm to TriCore employees” who had not consented to the disclosure of their information. Id. In presenting this argument, TriCore provides no authority for the proposition that a private litigant may rewrite a statutory balance based on its concerns about a hypothetical data breach. To the contrary, in University of Pennsylvania, the Supreme Court addressed an actual (rather than hypothetical) concern about the disclosure of confidential files, but nevertheless held that the balance established by Congress controls. It is inconceivable that a private litigant could overrule Supreme Court precedent based on its fears of theoretical third-party malfeasance.

TriCore also complains that “[t]he EEOC has failed to identify any mechanisms in place to safeguard against a future data breach.” Opp. at 27. The amicus goes a step further, asserting without authority that “the EEOC currently has no meaningful process in place to reasonably guard against … massive data breaches ….” Amic. Br. at 26. The EEOC of course has stringent mechanisms in place to prevent data breaches. It is hard to fathom why TriCore would argue the EEOC has an obligation to produce these data security protocols for TriCore’s review as part of this litigation, or why the amicus would assume without support that none exist. Certainly the voluntary production of such material would not comport with the EEOC’s statutory duty to protect the private information entrusted to it – a duty the EEOC takes very seriously.

Finally, in citing to Judge Smith’s concurrence in McLane, TriCore notes that the employer filed a petition for certiorari in that case, implying that the petition is somehow relevant to the concurrence. Opp. at 27 n.14. In fact, the petition is based on a standard of review issue unique to the Ninth Circuit. It does not purport to challenge the continuing relevance of University of Pennsylvania, which remains good law.

The amicus also argues that the EEOC should not have access to comparator information because that information is placed in an EEOC file relating to the individual’s charge that forms the basis for the investigation, and charging parties often have access to this information. Because an employee alleging discrimination is “often a former employee with an axe to grind,” the amicus contends, placing confidential information in files to which a charging party may have partial access “carries significant risk.” Amic. Br. at 23, 25.

Courts have already disposed of this argument in other cases. While it is true that the Commission is entitled to disclose information obtained during the course of an investigation to charging parties or witnesses, it does so only “where disclosure is deemed necessary for securing appropriate relief.” 29 C.F.R. § 1601.22; see also EEOC v. Assoc. Dry Goods Corp., 449 U.S. 590, 598-603 (1981). The Commission discloses only the subset of information necessary to further its investigatory and conciliation efforts, and does so with appropriate attention to maintaining confidentiality.[11] Such limited disclosure is vital for the advancement of Title VII’s statutory goal of “eliminating employment discrimination”: it assists the Commission’s investigatory efforts by allowing it to “more readily obtain information informally” by “present[ing] the parties with specific facts for them to corroborate or rebut.” Assoc. Dry Goods, 449 U.S. at 595, 600-01.[12] The practice also assists the Commission in its statutory efforts to conciliate charges and negotiate their resolution informally, because “[a] party is far more likely to settle when he has enough information to be able to assess the strengths and weaknesses of his opponent’s case as well as his own.” Id. at 601; see also EEOC v. Morgan Stanley & Co., 132 F. Supp. 2d 146, 156 (S.D.N.Y. 2000) (“As the Supreme Court has interpreted Title VII, Congress has specifically foreseen and approved of the EEOC’s practice of sharing information with charging parties, because that practice is consistent with and promotes the statutory purpose.”). In determining that such limited disclosure is permissible, Congress balanced the interests of confidentiality against the advancement of the Commission’s investigatory and conciliation efforts and ultimately concluded that the fundamental importance of the statutory goals outweighed potential privacy concerns. See Assoc. Dry Goods, 449 U.S. at 598-603; Univ. of Pa., 493 U.S. at 194 (“Congress has made the choice. If it dislikes the result, it of course may revise the statute.”); 29 C.F.R. § 1601.22.

The amicus claims that confidential information may be vulnerable to improper disclosure from FOIA requests, Amic. Br. at 25, but the procedures already in place are fully capable of protecting against this danger. Once an investigation has concluded, a charging party has a ninety-day period to request charge file information, but disclosure in such a case is made only after sanitizing the file to remove documents covered by a FOIA exemption. EEOC FOIA Reference Guide § XI, available at http://www.eeoc.gov/eeoc/foia/hb-11.cfm. For example, any information impacting personal privacy would be removed pursuant to FOIA exemptions 6 and 7(C). Id. Material an employer designates as trade secrets or confidential commercial information is covered by FOIA exemption 4, and any FOIA request for such material triggers procedural protections that include providing notice to the employer, a period of time for the employer to object, and the opportunity to seek an injunction in the event the employer and EEOC disagree on whether disclosure should be permitted. 42 U.S.C. § 2000e-12; 5 U.S.C. § 552; 29 C.F.R. § 1610.19.

To the extent the amicus implies a danger of EEOC disclosure of confidential material to third parties under FOIA or another statute, the EEOC routinely denies requests for charge file information made by persons other than the parties to the charge – for any reason, and whether under FOIA or not – because Title VII prohibits such disclosure. 29 C.F.R. § 1601.22; EEOC FOIA Reference Guide § XI; see also 5 U.S.C. § 552(b)(3) (FOIA exemption 3 exempts material from disclosure when prohibited by another statute). The Privacy Act of 1974 also protects EEOC charge files from public disclosure. 5 U.S.C. § 552a(b). In addition, the Trade Secrets Act forbids government employees from disclosing trade secrets to anyone at any time, including aggrieved persons or charging parties, under threat of criminal penalties. 18 U.S.C. § 1905. In short, the amicus’s implication that the EEOC cannot be entrusted with this material because it does not take privacy protections seriously is completely unfounded.

CONCLUSION

For the foregoing reasons and the reasons stated in the EEOC’s opening brief, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

MARGO PAVE

Assistant General Counsel

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rule 32(a)(7)(B). This brief contains 6,270 words, from the Introduction through the Conclusion, as determined by the Microsoft Word 2010 word processing program, with 14-point proportionally spaced type for text and footnotes.

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

Dated: August 25, 2016

[1] TriCore doubles down on this position in its Answer Brief, asserting that it had no obligation to consider whether reassignment to a vacant position would be a reasonable accommodation for Guadiana because it determined she could not perform the essential functions of her job and was therefore not a qualified employee. Opp. at 22 n.10. This position violates the clear holding of Midland Brake, which requires reassignment to a vacant position for which an employee with a disability is qualified, barring undue hardship. Midland Brake, 180 F.3d at 1164. TriCore did not consider Guadiana for all vacant positions and determine she was not qualified for any of them; instead, it put the onus of finding any such position on Guadiana, in violation of established law.

[2] TriCore complains that the EEOC “has never produced the text or provided the actual language” of the portion of its Compliance Manual the EEOC cited to TriCore. Opp. at 3; see id. at 9 n.3. This material is readily available from both Westlaw and Lexis. Indeed, TriCore quite clearly had access to the Compliance Manual, as it quotes liberally from the document in its Answer Brief. See Opp. at 3, 6, 9, 13, 14, 15.

[3] TriCore’s claim that the EEOC’s investigation based on TriCore’s specific admissions constitutes a lack of fair notice and due process is similarly unfounded. See Opp. at 10, 19, 23.

[4] Given the EEOC’s repeated explanation of its grounds for believing TriCore violated Midland Brake, it is difficult to understand why the amicus contends the EEOC presents this argument “without any articulated basis.” Amic. Br. at 21.

[5] The amicus argues that the EEOC is being somehow “disingenuous” in noting that Guadiana alleged discrimination based on both sex and disability. Amic. Br. at 21-22 (“[T]his is not a sex discrimination case at all ….”). Guadiana clearly alleged pregnancy discrimination, however, see AA.26, and pregnancy discrimination is, by definition, a form of sex discrimination. See 42 U.S.C. § 2000e(k) (“The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy ….”).

[6] TriCore objects that the EEOC’s request for information about all pregnant TriCore employees – and not merely those who requested an accommodation – “certainly has no relevance.” Opp. at 17. But if women at TriCore desired an accommodation when they became pregnant but opted not to request one because they feared retaliation or believed it would be futile based on what they had previously experienced or observed, that information would be directly relevant to Guadiana’s charge of discrimination. To the extent TriCore argues it does not have such records, it is not required to compile and produce information it does not possess. EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 313 (7th Cir. 1981). The inability to respond to part of a subpoena does not, however, excuse an employer’s failure to provide the material it does have in its possession. See EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1039 (10th Cir. 1993) (“[T]he EEOC may compel an employer to compile information within its control in order to respond to a subpoena ….”).

[7] Though using slightly different language, the amicus makes the same argument. See Amic. Br. at 14-22.

[8] TriCore argues that the EEOC only recently took the position that an employer cannot treat a pregnant employee differently from other employees similar in their ability or inability to work. Opp. at 17-18 n.6 (citing Young). In fact, Young makes clear that the EEOC has consistently contended that employers should treat employees with disabilities caused by pregnancy the same as they treat employees with disabilities caused by other medical conditions. Young, 135 S. Ct. at 1351 (citing 29 C.F.R. § 1604.10(b) (1979)). Indeed, the Pregnancy Discrimination Act itself, which the EEOC enforces, states that pregnant women “shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work ….” 42 U.S.C. § 2000e(k). TriCore’s position that it was somehow legitimately unaware before 2014 that it needed to accommodate pregnant employees to the same extent it accommodated similarly disabled non-pregnant employees is therefore unpersuasive.

[9] TriCore implicitly admitted that Young was relevant to this dispute by insisting that the EEOC allow it to delay its response to the request for information until after the Supreme Court announced its decision. AA.47 (letter from Geoffrey Rieder to James Snyder).

[10] The amicus argues that the EEOC cannot pursue comparative information because Guadiana’s charge, though alleging pregnancy discrimination, did not specifically claim that similarly situated, non-pregnant workers were treated more favorably. Amic. Br. at 21. However, charging parties need only provide a written statement that identifies the parties and “describe[s] generally the action or practices complained of.” 29 C.F.R. § 1601.12(b). “[I]t is up to the EEOC, not [the charging party], to investigate whether and under what legal theories discrimination might have occurred.” Kronos, 620 F.3d at 300; see also McLane, 804 F.3d at 1057 (“Ochoa’s charge does not allege discrimination based on any particular legal theory, and it did not need to do so.”).

[11] Employers are encouraged to aid the EEOC in this respect by separately designating and submitting documents that contain any of the following materials: medical information, social security numbers, confidential commercial/financial information, trade secrets, personally identifiable information, and references to other charges. See “Effective Position Statements,” available at https://www.eeoc.gov/employers/position_statements.cfm.

[12] In addition to the underlying purpose of Title VII, the Court also based its holding on the statute’s language and its legislative history. Assoc. Dry Goods, 449 U.S. at 598-600.