Why Employers Need to Respond to EEOC Subpoenas As Soon As Possible

An employer who receives a subpoena from the Equal Employment Opportunity Commission (EEOC) has an incredibly short period of time to raise objections.

As part of its investigative authority, the EEOC has subpoena power under 29 C.F.R. § 1601.16. With a subpoena, the EEOC can compel the attendance and testimony of witnesses, the production of documents, or the examination of other evidence. But the rules do not give much time for employers to assert objections to a subpoena. Specifically, the rules provide that:

Any person served with a subpoena who intends not to comply shall petition the issuing Director or petition the General Counsel, if the subpoena is issued by a Commissioner, to seek its revocation or modification. Petitions must be mailed to the Director or General Counsel, as appropriate, within five days (excluding Saturdays, Sundays and Federal legal holidays) after service of the subpoena.

29 C.F.R. § 1601.16(b)(1). A petition objecting to an EEOC subpoena must separately identify each portion of the subpoena with which the petitioner does not intend to comply and must state, with respect to each such portion, the basis for noncompliance with the subpoena. If a petition is filed, the EEOC will either grant the petition and revoke or modify the subpoena, or it will deny the petition. The rules state that the EEOC must make its determination on the petition “[w]ithin eight calendar days after receipt or as soon as practicable.” 29 C.F.R. § 1601.16(b)(2).

Under the EEOC’s subpoena rules, the employer is clearly held to a higher standard than the EEOC. Whereas the employer only gets 5 days to assert objections to a subpoena, the EEOC gets to rule on the objections within 8 days or within the amorphous “as soon as practicable” standard.

The EEOC does not exactly have a reputation for speed either. According to the EEOC’s Fiscal Year 2011 Annual Report, “[t]he average processing time for appeal closures rose to 378 days in FY 2011, representing a 29.5% increase from 292 days in FY 2010 and a 64.3% increase from 230 days in FY 2007.” Notably, two-thirds of the charges of discrimination filed in that time period were meritless and resulted in a finding of no probable cause to believe that discrimination occurred.

Takeaway: If an employer receives an EEOC subpoena, it will have only 5 days to respond and, therefore, should immediately consult legal counsel about whether it is possible to petition for revocation or modification. In contrast, an employer who receives an EEOC charge of discrimination can expect that it will likely take the EEOC over a year to conclude that the charge, in most cases, is not supported by evidence.