This second installment of the two-part EEOC year-end roundup includes a review of noteworthy EEOC court opinions involving EEOC subpoenas, challenges to EEOC litigation based on the failure to engage in good faith conciliation, the applicable statute of limitations in EEOC pattern or practice cases and potential discovery involving the EEOC. Click here to read Part I, which focused on EEOC charges, time targets, and litigation. While there have been a substantial number of published decisions involving the EEOC over the past several months, cases involving the following areas are particularly worth mentioning:

EEOC Subpoenas

The EEOC has continued to initiate subpoena enforcement actions to support its investigation efforts, particularly involving pattern or practice investigations. The EEOC filed 21 subpoena enforcement actions during FY 2010, and this trend has continued with at least 5 subpoena enforcement actions having been filed between August 1 and November 30, 2010. The EEOC's track record also has been generally favorable to the EEOC in such subpoena enforcement actions.

Most employers are aware of the highly publicized case in EEOC v Kronos, Inc., 2010 U.S. App. LEXIS 18694 ( 3rd Cir. Sept. 7, 2010), which broadened the EEOC's rights involving a nationwide subpoena served on a third party testing service in an ADA case, but denied enforcement of the subpoena relating to a potential race discrimination claim.

Also worth noting is the subpoena enforcement action in EEOC v Schwan's Home Service, 707 F. Supp. 2d 980 (D. Minn. June 30, 2010), which enforced a subpoena requesting nationwide data following an amended charge that was broadened into a pattern or practice claim. The Schwan decision provides an excellent summary of recent case developments involving subpoena enforcement actions. This district court's decision in favor of the EEOC currently is on appeal to the Eighth Circuit Court of Appeals.

The most critical reminder, however, is that the EEOC has very strict time limitations in challenging EEOC subpoenas. See 29 C.F.R. Sec. 1601.16 (Petitions seeking revocation or modification of subpoenas must be filed within 5 days, excluding Saturdays, Sundays or Federal legal holidays)

Conciliation Efforts

There have been some significant case developments involving the EEOC's obligation to conciliate in good faith. Two recent cases that should be carefully reviewed are EEOC v Bloomberg, 2010 U.S. Dist LEXIS 113798 (S.D.N.Y., Oct. 25, 2010), and EEOC v High Speed Enterprise, 2010 U.S. Dist. LEXIS 111330 (Sept. 30, 2010). In Bloomberg, the district court dismissed portions of the lawsuit involving retaliation claims based on the failure to engage in good faith conciliation efforts. In High Speed Enterprises, the court merely stayed the lawsuit, but provided an excellent roadmap of the type of information that can be requested from the EEOC during the conciliation process, particularly information on damages.

Statute of Limitations in Pattern or Practice Cases

EEOC v Bloomberg is another recent case following the lead in EEOC v Freeman, 2010 U.S. Dist LEXIS 41336 (D. Md. April 27, 2010), which applied a 300-day limitation period (prior to the applicable charge) regarding relief sought on behalf of any purported victims, contrary to the EEOC's view that it is not bound by any limitations period in pattern or practice cases. This is an issue that needs to be closely monitored over the coming year.

Depositions of EEOC Personnel

In the event of EEO litigation, there is always the risk that a "probable cause" determination may be introduced in trial. One recent case suggests potential discovery that employers may want to consider, to clarify information contained in the file at the time of the reasonable cause finding. In EEOC v Pinal County and Pinal County Sheriff's Office, 714 F. Supp. 2d 1073 (D. Cal., April 30, 2010), an employer attempted to depose the EEOC District Director to probe the nature of the EEOC’s reasonable cause determination. Although the district court granted the EEOC's motion to quash the deposition subpoena, the case provides excellent case support for the circumstances in which a court may permit the deposition of EEOC personnel "in order to clarify factual information contained in its investigative file." The court cited three cases in which depositions of EEOC personnel were permitted. See e.g., Little v Auburn Univ., 2010 U.S. Dist. LEXIS 13491, 2010 WL 582083 (M.D. Ala. 2010); EEOC v California Psychiatric Transitions, 258 F.R.D. 391 (E.D. Cal. 2009); and EEOC v LifeCare Management Servs., LLC, 2009 U.S. Dist. LEXIS 21224, 2009 WL 772834 (W.D. Pa. 2009).

As the EEOC continues its vigorous enforcement efforts, employers should anticipate more broad-based investigations and a continued focus on pattern or practice litigation over the coming year.

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