Category Archives: Discrimination and Harassment

Breaking News: The Women’s Economic Security Act Is Poised To Become Law

On May 8–9, 2014, both the Minnesota House and Senate passed the Women’s Economic Security Act, a wide-ranging law that will make several significant changes to employment law in Minnesota.  See H.F. 2536.  Governor Dayton is expected to sign the bill into law in the near future.  Some of the provisions will take effect as soon as the day after enactment.  [Update:  Governor Dayton signed the bill into law on May 11, 2014.  The effective date for many provisions is May 12, 2014.]

Here’s what employers need to know about the new law:

New Pregnancy Accommodation Requirements:  One of the most significant changes of the new law is a requirement for employers with 21 or more employees at at least one site to provide reasonable accommodations to pregnant employees.  Employers will be required to engage in the interactive process with any pregnant employee who requests accommodations.  The law includes an exception from this requirement when the requested accommodation “would impose an undue hardship on the operation of the employer’s business.”  However, the law also states that it is not an undue hardship for an employer to provide the following accommodations: (1) more frequent restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.  The law further states that reasonable accommodation that may be required by the law include, but are not limited to, temporary transfer to a less strenuous or hazardous position, seating, frequent restroom breaks, and limits to heavy lifting.  However, employers will not be required to create a new or additional position in order to accommodate an employee, nor will they be required to discharge any employee, transfer any other employee with greater seniority, or promote any employee.  Finally, the law prohibits employers from retaliating against employees who request pregnancy accommodations.  These new requirements will become effective on the day following enactment by Governor Dayton.

Expanded Pregnancy Leave Requirements:  The law will require employers with 21 or more employees at at least one site to provide up to 12 weeks of unpaid leave to:  (1) a biological or adoptive parent in conjunction with the birth or adoption of a child; or (2) a female employee for prenatal care, or incapacity due to pregnancy, childbirth, or related health conditions.  To be eligible for the leave, an employee must work for the employer for at least 12 months preceding the request, and the employee must work at least in a half-time equivalent position for the 12 months preceding the request for leave.  These new requirements will become effective on the day following enactment by Governor Dayton.

Changes to Minnesota’s Sick Leave Benefits Law:  The law will expand Minnesota’s sick leave benefits law, which allows employees to use sick leave benefits to care for a relative, to include care for an employee’s mother-in-law, father-in-law, or grandchildren – in addition to the other relatives already covered by the law.  It will also allow employees to use sick leave benefits for “safety leave,” which is defined as “leave for the purpose of providing or receiving assistance because of sexual assault, domestic abuse, or stalking.”  The law will further prohibit employer retaliation against employees who request or use sick leave benefits protected by the law.  These new requirements will become effective on the day following enactment by Governor Dayton.

Unemployment Benefits For Victims of Sexual Assault or Stalking:  Effective October 5, 2014, the law will allow employees who quit their employment or who are terminated because either the employee or an immediate family was the victim of sexual assault or stalking to qualify for unemployment insurance benefits.

New “Equal Pay Certificate” Requirements:  Subject to a few exceptions, the law will generally require that any business with 40 or more employees in Minnesota (or the state where the business has its primary place of business) on any single day in the previous 12 months, must provide an “equal pay certificate” in order to execute a contract or agreement in excess of $500,000 with the State, an agency of the state, the Metropolitan Council, or a metropolitan agency.  In order to obtain the equal pay certificate, the business must pay a $150.00 fee and the chief executive of the business must certify that:

  • The business is in compliance with Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, Minnesota Human Rights Act, and Minnesota Equal Pay for Equal Work Law;
  • The average compensation for its female employees is not consistently below the average compensation for its male employees within each of the major job categories in the EEO-1 employee information report for which an employee is expected to perform work under the contract, taking into account factors such as length of service, requirements of specific jobs, experience, skill, effort, responsibility, working conditions of the job, or other mitigating factors;
  • The business does not restrict employees of one sex to certain job classifications and makes retention and promotion decisions without regard to sex;
  • That wage and benefit disparities are corrected when identified to ensure compliance with equal pay requirements;
  • The certification must explain how often wages and benefits are evaluated to ensure compliance with equal pay requirements; and
  • The certification must indicate whether the business, in setting its compensation and benefits, utilizes:  (1) a market pricing approach; (2) state prevailing wage or union contract requirements; (3) a performance pay system; (4) an internal analysis; or (5) an alternative approach to determine what level of wages and benefits to pay its employees. If the business uses an alternative approach, the business must provide a  description of its approach.

The law will also give the Commissioner of Human Rights the authority to audit contractor businesses to ensure compliance with the equal pay certificate requirements described above.  If audited, a business will be required to disclose:  (1) the number of male employees; (2) the number of female employees; (3) average annualized salaries paid to male employees and to female employees, in the manner most consistent with the employer’s compensation system, within each major job category; (4) information on performance payments, benefits, or other elements of compensation, in the manner most consistent with the employer’s compensation system, if requested by the commissioner as part of a determination as to whether these elements of compensation are different for male and female employees; (5) average length of service for male and female employees in each major job category; and (6) other information identified by the business or by the commissioner, as needed, to determine compliance.

The equal pay certificate requirements will become effective on August 1, 2014.

Wage Disclosure Protections:  The law will prohibit employers from:  (1) requiring nondisclosure by an employee of his or her wages as a condition of employment; (2) requiring an employee to sign a waiver or other document which purports to deny an employee the right to disclose the employee’s wages; or (3) taking any adverse employment action against an employee for disclosing the employee’s own wages or discussing another employee’s wages which have been disclosed voluntarily.  The law will also require employers with handbooks to inform employees of these rights in their employee handbooks.  On the other hand, the law clarifies that it does not authorize employees to disclose proprietary information, trade secret information, or information that is otherwise subject to a legal privilege or protected by law.  These requirements will become effective on the day following enactment by Governor Dayton.

Amended Nursing Mother Protections:  The law will amend Minnesota’s existing nursing mother statute to require employers to make reasonable efforts to provide a room or other location to nursing mothers who need to express milk.  The amended law will require employers to provide a room “in close proximity to the work area, other than a bathroom or a toilet stall, that is shielded from view and free from intrusion from coworkers and the public and that includes access to an electrical outlet, where the employee can express her milk in privacy.”  The law will also prohibit retaliation against employees who assert rights under this section.  These requirements will become effective on the day following enactment by Governor Dayton.

Prohibition of “Familial Status” Discrimination in Employment:  The law will amend the Minnesota Human Rights Act (MHRA) to prohibit employment discrimination based on “familial status.”  The MHRA defines “familial status” to mean “the condition of one or more minors being domiciled with (1) their parent or parents or the minor’s legal guardian or (2) the designee of the parent or parents or guardian with the written permission of the parent or parents or guardian.”  The “familial status” protection also extends to “any person who is pregnant or is in the process of securing legal custody of an individual who has not attained the age of majority.”  These requirements will become effective on the day following enactment by Governor Dayton.

Takeaway:  The Women’s Economic Security Act represents a substantial change to Minnesota employment law.  Over the coming weeks, Minnesota Employer will cover the various aspects of the law in greater detail.  Because many of the provisions will take effect the day after the bill is signed by Governor Dayton, however, employers need to begin immediately familiarizing themselves with the law’s new legal requirements.

Second Circuit Rejects Hostile Work Environment and Retaliation Claims

The Second Circuit Court of Appeals recently rejected a Plaintiff’s claim of alleged hostile work environment harassment based on sporadic incidents of inappropriate behavior as well as the Plaintiff’s claim of retaliation under Title VII.

In Lewis v. City of Norwalk, the Plaintiff alleged that his supervisor “leered” at him and licked his lips in a provocative manner on several occasions over the course of two years. No. 13-2485 (2d Cir., Apr. 14, 2014). The Plaintiff further alleged that he felt uncomfortable when the supervisor asked him out for drinks, invited him to join his gym so the two could work out together, and complimented his taste in clothing. After the Plaintiff was presented with a poor performance review and offered the opportunity to resign, the Plaintiff complained about the supervisor’s alleged harassment. The employer hired an outside law firm to investigate the allegations. The investigator determined the allegations were uncorroborated, and the employer proceeded to terminate the Plaintiff’s employment.

With respect to the Plaintiff’s claim for hostile work environment harassment, the court concluded that the alleged incidents of leering and lip-licking occurred too infrequently to create a hostile work environment based on the Plaintiff’s sex. The court found that the other allegations (e.g., asking the Plaintiff out for drinks, inviting him to join a gym) were “facially sex-neutral incidents” that did not contribute to a hostile work environment.

With respect to the retaliation claim, the court held that there was no evidence of causation between the Plaintiff’s last-minute report of harassment and his termination. The court explained that “[e]mployers need not suspend previously planned [employment actions] upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.”

Takeaway: The Lewis case shows that courts continue to apply a high standard for hostile work environment claims and that allegations that are not sufficiently “severe and pervasive” will not suffice. The Lewis case also shows that an employee may not insulate him or herself from termination by alleging harassment or discrimination when it is clear that the employee’s termination is imminent.

Guess What? The EEOC Does the Same Thing It Tells Employers Not to Do

In a poignant example of the pot calling the kettle black, the Sixth Circuit Court of Appeals recently rejected the EEOC’s argument that an employer’s use of credit checks for hiring caused a disparate impact, pointing out that the EEOC does the exact same thing.

The first sentence in the court’s opinion in EEOC v. Kaplan Higher Education Corp. says it all: “In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses.” No. 13-3408 (6th Cir., Apr. 9, 2014). The opinion goes on to describe how the EEOC’s personnel handbook recites that “[o]verdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations,” and how because of that concern, the EEOC runs credit checks on applicants for 84 of the agency’s 97 positions. Nevertheless, the EEOC sued an employer, arguing that the employer’s use of credit checks for hiring had a disparate impact in violation of Title VII.

In rejecting the EEOC’s claim, the court held that the expert witness testimony offered by the EEOC to prove that a disparate impact occurred was unreliable and admissible. First, the expert’s methodology did not meet the requirements of Federal Rule of Evidence 702 because it relied on an untested methodology and was not peer-reviewed. Second, the expert admitted that his results were not based on a statistically representative sample size. Without admissible expert testimony to prove a disparate impact based on race, the court concluded that the EEOC could not prove its claim of disparate impact discrimination.

Takeaway: The Kaplan decision suggests that the EEOC may have an uphill battle in proving that an employer’s reliance on credit checks for hiring results in a disparate impact, particularly given the EEOC’s own policies on the subject. However, the EEOC may one day succeed in finding a reliable expert with a tested methodology to prove this type of claim. Therefore, it’s a good idea for employers to continue to use credit checks for hiring only when doing so is defensible as a matter of business necessity.

EEOC Challenging National Pharmacy Over Terms of Severance Agreements

On February 7, 2014, the EEOC filed suit in the United States District Court for the Northern District of Illinois in Chicago against the large prescription and healthcare related services provider, CVS, contending that its actions concerning severance benefits violate Title VII of the Civil Rights Act of 1964. Specifically, this law provides the EEOC with the ability to seek immediate redress to remedy any potential injury which would result from an employer attempting to prohibit communication to the agency to address discrimination.

The EEOC based this Complaint on the theory that CVS was conditioning the receipt of severance benefits on an agreement which it interpreted to “interfere with employees’ rights to file discrimination charges and/or communicate and cooperate with the EEOC,” including limitations on the departing parties ability to cooperate, non-disparagement clauses, and non-disclosure of confidential information. Additionally, the Separation Agreements included general releases of claims, covenants not to sue, and consequences for breach. In the Complaint, the EEOC stresses the policy consideration that any conduct taken by an employer to limit employees’ access to report violations is unlawful. The EEOC’s stated concern is to “preserve access to the legal system” and to ensure that employees remain “free from fear of adverse consequences” if they are to report potential unlawful action.

Takeaway: The timeline for resolution of the CVS lawsuit could be a few months or take several years. In the interim, employers should evaluate whether severance, benefits, or contractual agreements with their employees limit the rights to seek federal intervention for unlawful acts undertaken by the employer to avoid running afoul of the EEOC’s policy mandate outlined in the CVS lawsuit.

2013 EEOC Charge of Discrimination Statistics for Minnesota

The Equal Employment Opportunity Commission (EEOC) recently issued its enforcement statistics for the EEOC’s fiscal year 2013, including data about what charges were filed in Minnesota.  Overall, a total of 982 charges were filed with the EEOC in Minnesota in 2013, which represents an approximately 12.5% decrease from 2012, when 1,120 total charges were filed.

The breakdown of the charges was as follows:

  • 56.4% alleged retaliation.
  • 36.5% alleged disability discrimination.
  • 35.5% alleged race discrimination.
  • 26.5% alleged age discrimination.
  • 24.9% alleged sex discrimination.
  • 11.6% alleged national origin discrimination.
  • 3.8% alleged religious discrimination.
  • 3.0% alleged color discrimination.
  • 1.7% alleged equal pay discrimination.
  • 0.1% alleged genetic information discrimination.

Collectively, these numbers add up to more than 100% because many charges include multiple claims.  Consistent with the past several years, the number of retaliation claims continued to increase over previous years.  In 2013, over half of all charges of discrimination filed with the EEOC in Minnesota in 2013 included a claim of retaliation.  At the opposite end of the spectrum, genetic information discrimination was alleged in only one charge of discrimination filed with the EEOC in Minnesota in 2013.

Takeaway:  The EEOC’s 2013 statistics show that retaliation claims continue to pose one of the most common threats to employers in Minnesota.  Retaliation claims are followed by claims for disability, race, age, and sex discrimination, which make up the majority of charges filed in Minnesota.

New EEOC Guidance on Religious Garb and Grooming in the Workplace

On March 6, 2014, the Equal Employment Opportunity Commission (EEOC) published a question-and-answer guide, entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities,” and an accompanying fact sheet, to help clarify the religious provisions of Title VII for employers.  The new EEOC guidance answers questions about what Title VII prohibits and what types of reasonable accommodations may be required for employees’ sincerely held religious beliefs.

Here are some of the highlights from the EEOC’s new guidance:

  • Prohibitions of Title VII:  Title VII prohibits disparate impact discrimination, disparate treatment discrimination, retaliation, and harassment based on religion.
  • Customer Preference:  Customer preference is not a defense to a claim of religious discrimination under Title VII.  For example, employees may not be segregated or excluded from certain jobs (such as jobs with customer contact) based on actual or perceived customer preference.
  • Reasonable Accommodations:  Under Title VII, employers may be required to provide a reasonable accommodation for sincerely held religious beliefs or practices – such as making an exception to dress and grooming requirements or preferences – unless it would pose an undue hardship.
  • Covering Religious Garb:  Generally, requiring an employee’s religious garb, marking, or article of faith to be covered is not a reasonable accommodation if that would violate the employee’s religious beliefs.
  • What Constitutes an Undue Hardship:  In general, an employer may bar an employee’s religious dress or grooming practices based on legitimate safety, security, or health concerns that would result in an actual undue hardship.  Co-worker disgruntlement and customer preference, however, are not considered undue hardships.
  • Exceptions for Non-Religious Employees Are Not Required:  When an employer makes an exception for an employee as a religious accommodation, the employer may still refuse to allow similar exceptions sought by other employees for secular reasons.

Takeaway:  The new EEOC guidance regarding religious garb and grooming practices are good sources of information for employers with questions about Title VII’s requirements for religious accommodations in the workplace.

The State of the Union and Employment Law

President Obama’s State of the Union Address highlighted several legislative initiatives that potentially affect the employer/employee relationship.  Two of the more noteworthy are:

  • Supporting workplace fairness for women by passing the Paycheck Fairness Act, which would strengthen the Equal Pay Act; and
  • Advancing workplace equality for Lesbian, Gay, Bisexual, and Transgender (LGBT) workers by adding sexual orientation and gender identity to the list of statuses that are federally protected from employment discrimination. The Employment Non-Discrimination Act, which has passed the U.S. Senate, but not the House of Representatives, would provide such federal protections for LGBT workers.

The Equal Pay Act (EPA), once a dominant force in federal anti-discrimination law, could well be revitalized if President Obama’s Paycheck Fairness Act strengthens the EPA.  Some argue that the EPA, which protects against gender-based discrimination in pay, has been weakened by the Court-expanded exception for “differential factors other than gender.”  The Paycheck Fairness Act would try to close or narrow this loophole by requiring such a factor to be strictly job-related and increasing the level of proof required.  An old lion may roar again.

The expansion of Title VII protection to LGBT workers would be a significant broadening of federal anti-discrimination protection.  But employers should recall that sexual orientation and gender identity discrimination are already prohibited by many state laws, including the Minnesota Human Rights Act, so proactive measures already in place may make a change in federal protection of lesser impact in some states than it may be in other states.

Takeaway:  The President’s State of the Union Agenda was decidedly domestic in its focus, and federal discrimination protection is a traditional domestic policy point.  Indeed, both of the legislation initiatives discussed above have been tried and defeated in the legislative process in this and previous administrations.  But their renewal has the potential of a real impact on employment law.  Minnesota Employer will keep you updated.

Does 42 U.S.C. § 1981 Protect Non-Minority Witnesses to Discrimination?

Potentially yes – the Eighth Circuit Court of Appeals recently held that a non-minority witness who was interviewed as part of an internal investigation of racial discrimination was protected under the anti-retaliation provision of 42 U.S.C. § 1981.

42 U.S.C. § 1981 is a federal law that protects the rights of all citizens to “make and enforce contracts” to the same extent “as is enjoyed by white citizens.”  Courts have held that § 1981 encompasses both discrimination claims and retaliation claims.  In the employment context, racial discrimination is usually addressed under Title VII of the Civil Rights Act, but claims are sometimes asserted under 42 U.S.C. § 1981 as well.

In Sayger v. Riceland Foods, the Eighth Circuit held that a white employee was protected from retaliation under § 1981 because he testified about racial discrimination in the workplace and, therefore, “vindicated the rights of racial minorities.”  Nos. 12-3301, 12-3395 (8th Cir., Nov. 18, 2013).  The court explained that:

We conclude that someone who has substantiated a complaint of a civil rights violation has demonstrated opposition to that violation and acted to vindicate the rights of minorities.  Such an individual should therefore receive the same protection against retaliation as the person who filed the original complaint.  If employees who give evidence or respond to questions during internal inquiries into alleged discrimination are not protected from retaliation, it would impede any internal efforts to address discrimination.

Because the plaintiff in Sayger was able to produce evidence showing that his participation in the internal investigation was the reason for his termination, the court affirmed the lower court’s finding that the employer was liable for retaliation under § 1981.

Takeaway:  When conducting internal workplace investigations, it is important for employers to know that legal protections under applicable anti-discrimination and anti-retaliation laws may apply not only to the victims, but also to any witnesses interviewed as part of the investigation.

Are Employee Organizations Protected By Title VII’s Anti-Retaliation Provision?

No – the D.C. Circuit Court of Appeals recently held that Title VII’s anti-retaliation provisions do not apply to employee organizations.

In Cook & Shaw Foundation v. Billington, a non-profit organization composed of current and former employees of the Library of Congress alleged that the Library retaliated against it by refusing to recognize the organization for purposes of providing meeting spaces and other benefits.  The organization claimed that the Library’s refusal to recognize it was in retaliation for the organization providing assistance to employees to pursue claims of racial discrimination against the Library.  No. 12-5193 (D.C. Cir., Dec. 13, 2013).

The D.C. Circuit Court of Appeals held that the complaint failed to state a claim for retaliation under Title VII.  Analyzing the statutory text of Title VII, the court explained that Title VII only prohibits retaliation by an employer if the retaliation occurs because of statutorily protected activity by “employees or applicants for employment.”  The court then held that the terms “employees or applicants for employment” do not include employee organizations, such as the Cook & Shaw Foundation.  Because the complaint only alleged that the organization engaged in protected activity, but did not allege that any particular employees or applicants engaged in protected activities, it failed to state a claim under Title VII’s anti-retaliation provision.

Takeaway:  Title VII’s anti-retaliation provision only applies when an employee or applicant for employment engages in protected activity.  The activity of an organization, on the other hand, is not protected by the statute.

How Does the Government Shutdown Affect the EEOC?

The shutdown of the federal government is having a significant impact on the operations of the Equal Employment Opportunity Commission (EEOC).  According to the EEOC’s Shutdown Contingency Plan, the EEOC’s workforce is significantly reduced and, although certain EEOC activities are continuing, many are not.

The Plan provides that during the shutdown the EEOC will proceed as follows:

  • EEOC staff will not be available to answer questions or respond to correspondence from the public.
  • The EEOC will continue to accept charges of discrimination, but will not investigate those charges.
  • The EEOC will request continuances for pending litigation and will continue to litigate only if a court denies its request for an extension of time.
  • The EEOC will remain ready to seek a temporary restraining order or preliminary injunction, if necessary.
  • EEOC mediations will be cancelled.
  • Federal sector hearings will be cancelled, and federal employees’ appeals of discrimination complaints will not be decided.
  • Outreach and education events will be cancelled.
  • No Freedom of Information Act (FOIA) requests will be processed.

During the shutdown, the EEOC’s workforce will be reduced from 2,164 staff and contract personnel to 107 staff and contract personnel, many of whom will be part-time or on-call.

Takeaway:  Employers who have mediations scheduled with the EEOC in the near future or who are awaiting decisions on pending charges of discrimination will need to be patient during the government shutdown.

Does Paramour Favoritism Constitute Discrimination?

Despite employers’ best efforts to avoid sexual relationships occurring between supervisors and subordinates, human nature can win out.  When a supervisor’s overtures and acts are unwelcome, the subordinate may of course assert claims of sexual harassment.  Not all subordinates, however, find these invitations unwelcome.  Occasionally these relationships are consensual and the subordinate has no complaints.

The subordinate’s co-workers may nonetheless have a different view of the situation.  These co-workers may find that the supervisor is treating the subordinate with unfair favoritism.  Perhaps the subordinate is receiving undeserved assignments and compensation or the handbook rules on attendance and other workplace standards may not seem to apply to the subordinate.  The co-workers may find the supervisor’s conduct discriminatory and complain.  In turn, the supervisor may be upset by the co-workers’ claims and treat the co-workers with indifference and further disadvantage.

These were the allegations considered by the Minnesota federal district court in Dau v. Arthur J. Gallagher & Co, et al., Civil No. 13-1560 (D. Minn. Sept. 3, 2013).  The subordinate’s co-workers brought claims of sexual harassment and retaliation against the employer.  The court dismissed these claims holding that isolated instances of favoritism toward a paramour do not violate Title VII of the Civil Rights Act or the Minnesota Human Rights Act.  The court held that only claims of widespread sexual favoritism could proceed.  The court also dismissed the co-workers’ retaliation claims, holding that the co-workers could not have had a reasonable belief that the conduct they alleged violated applicable law.  The court stated that the co-workers could not rely on “his or her own reasoning and sense of what is discriminatory.”

Takeaway:  While an employer may avoid liability regarding a supervisor’s isolated instances of favoritism toward a subordinate with whom he or she is having a consensual relationship, such favoritism should not be encouraged or condoned.  Doing so may result in workplace dysfunction and operational shortcomings.  If confronted with such a circumstance, an employer may want to consult with their legal counsel.

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.