EEOC Subpoena for Fitness Test Information Not Enforced
By Ted Olsen
The Equal Employment Opportunity Commission, in its investigations of charges, often seeks records far beyond those relating merely to the charging party and his or her allegations. When an employer resists an EEOC subpoena, it typically results in a court action for the subpoena's enforcement. Because of the relatively lenient legal standard applicable to such situations, in most instances, it often seems futile to fight an agency subpoena. However, in some cases, such as EEOC v. Loyola Univ. Med. Ctr., No. 11-cv-4456 (N.D. Ill. Oct. 13, 2011), courts recognize the sound business reasons for not permitting such discovery, and will rein in the agency's over-reaching.
In Loyola Univ., a former hospital employee alleged that she was required to undergo medical and psychiatric testing that was not "job-related and consistent with business necessity," as required by the Americans with Disabilities Act, 42 U.S.C. § 12112(d)(4)(A). The EEOC subpoenaed medical test results and other records of all employees required by the employer to complete a "fitness-for-duty exam." The federal court, however, refused to enforce the subpoena, concluding that the employer's treatment of other employees would not assist the agency in determining whether the testing of the charging party was job-related and consistent with business necessity.
Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.
©2011 Sherman & Howard L.L.C. November 1, 2011