Late last year we reported that Case New Holland, Inc. (CNH) had sued the EEOC after learning that the agency, in the course of investigating a claim of age discrimination, had sent a blast email. This email was linked to a questionnaire and sent to 1300 employees at their work email addresses at the beginning of their workday. See our article on the subject here.
In Case New Holland Inc. v. EEOC, No. 1:13-cv-01176 (D.D.C.), CNH contended that the EEOC's tactic violated its rights under the Administrative Procedure Act and the Fourth and Fifth Amendments of the United States Constitution. It cited,
- the EEOC's failure to publish a regulation sanctioning the practice and putting employers on notice that the agency might invade their email networks;
- the absence of consent which, it claimed, amounted to trespass violative of the Fourth Amendment's limits on government searches;
- the unilateral commandeering of the CNH email network without authority or compensation amounted to a due process clause violation; and
- 23.6(c)(1) of the EEOC's Compliance Manual, which confirms an employer's right to have counsel present at interviews of management employees – a right that obviously was bypassed by sending questionnaires directly to employees, including managers.
The EEOC moved to dismiss the complaint on purely technical grounds, arguing that CNH lacked standing to sue, that the case was not ripe for review and that the district court lacked subject matter jurisdiction to hear CNH's claim. While its motion failed to mount a legal defense on the merits of the claim, the agency's brief did make the following sweeping assertion of authority: "Just as the EEOC can conduct in-person interviews pursuant to its statutory investigative authority, it can also communicate in writing and by e-mail with employees and witnesses to pose questions and gather information pursuant to its broad statutory authority to investigate discrimination claims. The e-mail communication was an efficient and appropriate investigatory method for determining the existence and scope of any potential ADEA violation and for identifying aggrieved individuals entitled to relief if an ADEA violation is found."
Nearly one year after the EEOC moved to dismiss, the court finally ruled, granting the EEOC's motion after finding that CNH lacked standing to bring the action. Standing to bring a claim requires an assertion of "injury-in-fact": an invasion of a legally protected interest that is "concrete and particularized" as well as "actual or imminent, not conjectural or hypothetical." The injuries CNH claimed to have suffered consisted in part of disrupted productivity at work and of the employer-employee relationship. The court found these claims of injuries to be "conclusory, consisting of generalities and speculation" and insufficient to establish that any actual harm in fact had occurred. It observed that the complaint failed to aver that employees actually diverted their attention from their work to answer questions in the linked survey, and had they done so, what specific injury CNH suffered as a result. A second claimed injury was said to be the potential cost of class action litigation that the EEOC was attempting to prompt by sending the emails to CNH's employees. The court brushed this claim aside based on the understanding that predictions of future events are too speculative to satisfy the concrete injury requirement needed to confer standing.
Meaning
Despite the EEOC's seeming suggestion that sending blast emails to employees on employer-maintained networks is an appropriate investigative technique, there are no indications at this time that the agency has made widespread use of this tactic. Whether the agency's victory against CNH's challenge to the practice might lead it to employ the tactic more frequently remains to be seen. It certainly is too soon for the agency to conclude on the strength of this dismissal that its blast emailing of employees on employer-owned networks during investigations is an unreviewable exercise of discretion as a matter of law. The fact that CNH adequately failed to plead a concrete injury hardly means that no concrete injury can be pled in these circumstances, and that the merits of a challenge to this practice never can be reached.
Possible Action
The EEOC might well construe the CNH decision to be a green light to engage in blast emailing of employees on employer-owned networks as a more routine investigatory practice. Therefore, it would be sensible for employers to be alert to this possibility and to develop means of detecting the practice and responding. While care must be taken to avoid action that the EEOC could characterize as interference with its investigatory function, employers should, at a minimum, advise all management level employees to report to human resources and/or in-house legal staff any surveys or other communications from the EEOC that they may receive – unless, of course, the communication pertains to the employee's own charge of discrimination. Management employees can be encouraged not to respond to such communications unless advised to do so by a company lawyer. In-house counsel may respond to such blast emails with objections insofar as they solicit information from management-level employees, who are agents of the company, which is represented by counsel. Citation to §23.6(c)(1) of the EEOC's Compliance Manual, referred to above, also would be appropriate.
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