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Staffing agency ordered to comply with 3-year-old EEOC subpoena

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An appellate court has ordered a staffing agency to comply with a broadly worded subpoena issued by the U.S. Equal Employment Opportunity Commission more than three years ago on the basis that its objection to the subpoena was filed a day late.

According to the ruling by the 7th U.S. Circuit Court of Appeals in Chicago in Equal Employment Opportunity Commission v. Aerotek Inc., while investigating charges filed by one current and one former employee of the Hanover, Md.-based staffing firm, an EEOC investigator learned about 10 other pending charges filed against the firm by employees.

The investigator “learned that Aerotek allegedly required its recruiters to place contract employees in accordance with its clients’ discriminatory preferences. The investigator also learned that certain temporary employees may have been paid less on the basis of their national origin,” according to the Jan. 11, ruling, which was announced by the EEOC on Wednesday.

Subpoena issued in 2009

The EEOC issued a subpoena in September 2009 seeking a “broad range of demographic information, including the age, race, national origin, sex and date of birth of all internal and contract employees dating back to January 2006,” as well as information about recruitment, selection, placement and termination decisions by Aerotek and its clients, said the ruling.

The EEOC filed its original lawsuit in federal district court in Chicago.

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Although Aerotek has produced almost 13,000 pages of documents to date, it has “allegedly continued to fail to comply with the EEOC’s repeated requests for further information,” says the appellate court ruling. Aerotek has argued only two members of the EEOC considered its petition to revoke or modify the subpoena, while it was required to have three.

The appellate court ordered Aerotek to comply with the subpoena on the basis that it submitted its petition to revoke or modify the subpoena six business days after it was issued on Sept. 15, 2009, while, according to the statute, it should have submitted it within five business days. “Aerotek has provided no excuse for this procedural failing and a search of the record does not reveal one,” said the ruling by the 7th Circuit’s three-judge panel.

“We cannot say whether the Commission will ultimately be able prove the claims made in the charges here, but we conclude that EEOC may enforce its subpoena because Aerotek has waived its right to object,” said the court, in affirming a lower court ruling.

Commenting on the ruling, Jack Rowe, director of the EEOC’s Chicago District office, said in a statement, “Aerotek has spent significant time and resources fighting the September 2009 subpoena. It ignored the EEOC’s determination that the subpoena was valid, as well as the district court’s determination that EEOC acted within its authority to investigate allegations of discrimination. This is a reminder that no matter how many times EEOC investigations are challenged, we will remain committed to our congressional mandate to investigate and ferret out discrimination.”

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The company said in a statement, “Aerotek is disappointed by the court's ruling, but we remain committed to cooperating with the EEOC’s investigation. Aerotek aims to be as transparent as possible in cooperation with any investigation, especially as it relates to equal employment opportunity, an issue that is critical to our business and fundamental to our values as a company.

“As the court noted, we already have provided thousands of pages of information to the EEOC. However, we believe that the EEOC is requesting sensitive business information that is outside the scope of the investigation. Aerotek does not discriminate in employment opportunities or practices and provides ongoing training to our employees to ensure they are following and upholding EEO policies and procedures. We will continue to work with the EEOC and are hopeful that we can achieve a speedy resolution of the case.”

Rae T. Vann, general counsel for the Washington-based Equal Employment Advisory Council, an employer group, said the court ruled on the basis of a procedural technicality.

“It’s a little curious to me that the EEOC would be touting it as a victory. It’s a little misleading,” she said.

The ruling “does not speak to the merits of the case, in chief that being the extraordinary breadth of the EEOC’s request, and whether or not it was otherwise entitled to receive that information.” Ms. Vann said. “I have strong doubts that they would have been that successful had the court reached the merits.”