In what appears to be a first for the Equal Employment Opportunity Commission (EEOC), the Commission used a mass email to 1,330 current and former employees of a company under an age discrimination investigation in order to solicit assistance in their investigation.The email contained a link to a questionnaire that included such questions as:
- “At any point during the application process, did anyone … make any comments about your age?”
- “At any point during the application process, did anyone … make any comments about the age of applicants/employees?”
- “At any point during the application process, did anyone … make any other age-related comments?”
The Commission had access to the email addresses because the company had voluntarily provided them as part of its response to an EEOC’s request for information that accompanied a letter announcing that the EEOC was opening a nationwide investigation under the Age Discrimination in Employment Act (ADEA). A year and a half later, the company’s employees and managers received the email blast.
In response, the company filed a lawsuit against the EEOC. It alleged that the Commission violated the federal Administrative Procedure Act as well as the company’s constitutional rights under the Fourth Amendment search and seizure clause and the Fifth Amendment takings clause for the agency’s unauthorized use of CNH’s computer data and its unannounced, ex parte investigative communications with the company’s management.
The suit seeks copies of all information gathered by the Commission through their emailed questionnaire and to permanently bar the EEOC from utilizing this information in any subsequent lawsuit the EEOC may commence against the firm.
Meanwhile, the EEOC has defended its actions as falling within the EEOC’s investigatory power to communicate with employees. The Commission has sought to have the company’s suit over its tactics dismissed, stating:
While the content of the email communication may have caused discussion among employees and managers at the workplace, communication by face-to-face, regular mail or telephone could have had the same impact on the persons contacted… [i]nvestigations by federal agencies may disrupt the processes of normal business operations but this is the cost of doing business and does not result in a cognizable harm.
Stay tuned to see how the EEOC fares with its new tactics.