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EEOC disability investigation of Royal Caribbean ruled too broad

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A recent appeals court ruling chastising the U.S. Equal Employment Opportunity Commission for issuing an overly broad and burdensome subpoena in a discrimination case is expected to help other employers combat similar orders.

The ruling in Equal Employment Opportunity Commission v. Royal Caribbean Cruises Ltd. earlier this month by the 11th U.S. Circuit Court of Appeals in Atlanta concerned Argentine national Jose Morabito, who alleged in a 2010 discrimination charge filed with the EEOC that Miami-based Royal Caribbean violated the Americans with Disabilities Act by refusing to renew his employment contract after he was diagnosed with HIV and Kaposi's sarcoma, a cancer frequently associated with AIDS.

The EEOC issued an administrative subpoena seeking a list of all Royal Caribbean employees who were discharged, or whose contracts were not renewed, dating back to August 2009, as well as additional details about them.

In arguing against the subpoena, Royal Caribbean said Mr. Morabito was not a U.S. citizen and that his ship flew under Bahamas' flag. It also estimated that gathering the data would require work by five to seven employees for two months.

In its recent ruling, a three-judge panel of the 11th Circuit unanimously upheld a magistrate judge's and a Miami federal judge's rulings in the case, stating it was “not immediately clear” why the data sought by the EEOC was relevant to Mr. Morabito's suit and that it was unduly burdensome.

The information sought is “at best tangentially relevant to Mr. Morabito's individual charge of discrimination,” said the ruling.

The EEOC is reviewing the decision and has no further comment at this point, a spokeswoman said in a statement.

Observers say the court's ruling is significant.

“It takes the commission to task for fishing for a class through a subpoena much broader than the scope of the charge,” said David Gevertz, a shareholder at law firm Baker, Donelson, Bearman, Caldwell & Berkowitz P.C. in Atlanta,

“It was just a nakedly aggressive move on the EEOC's part ... and I'm surprised they decided to litigate this up to the 11th Circuit, given the really tenuous link that the subpoena had” to the charge brought by Mr. Morabito, Mr. Gevertz said.

“If the EEOC really wanted to fight this battle, they picked the wrong circuit and the wrong set of facts,” he said.

“In this case, they got a little clouded in their judgment” in issuing the subpoena because the EEOC did not take into consideration the case involves a foreign nation and an employee who is not a U.S. citizen, said Emily S. Borna, a shareholder at Jackson Lewis P.C. in Atlanta.

While earlier decisions in the 3rd, 6th and 9th circuits upheld broadly worded EEOC subpoenas, more recent rulings, including a 2012 10th Circuit decision, impose “some real limitations” on the EEOC, said J. Randall Coffey, a partner at Fisher & Phillips L.L.P. in Kansas City, Missouri.

In the 2012 case, the Denver-based court held the EEOC attempted “to justify an incredibly broad request for information” in its subpoena of BNSF Railway Co.

The subpoena had sought information on current and/or former employees throughout the United States since 2006.

The Atlanta appeals court's ruling also continues a more general trend of courts “not agreeing with the EEOC's view of the law or the EEOC's authority, especially in recent years, because the EEOC seems to be increasingly aggressive, and the courts seem to be aggressive in reining in the EEOC,” said Richard D. Tuschman a partner at Akerman L.L.P. in Miami.

In its 2013 ruling in Equal Employment Opportunity Commission v. Peoplemark Inc., the Cincinnati-based 6th Circuit ruled that it was unreasonable for the EEOC to pursue a case against temporary staffing firm Peoplemark Inc. after learning that a company official's initial statement about a companywide policy of rejecting job applicants who are felons was untrue.

Gerald L. Maatman Jr., a partner at Seyfarth Shaw L.L.P. in Chicago, said he anticipates that other employers will cite Royal Caribbean in arguing an EEOC subpoena is overly broad and allow employers to say “here's why.”

But Michael C. Wilhelm, a shareholder with law firm Briggs & Morgan P.A. in Minneapolis, said often “the expense of litigating something like this vs. complying can be a hindrance” to employers challenging an EEOC subpoena.

“I think they frequently are far better off trying to negotiate resolution with the EEOC if it's something they can live with,” Mr. Coffey of Fisher & Phillips said.