More Relevant Than You Think: The EEOC’s Request for Hiring Materials Is Enforced on a Discharge Claim
At the end of last month, the Seventh Circuit enforced a subpoena issued by the EEOC, seeking an employer’s hiring materials in connection with the Commission’s investigation of a discriminatory discharge claim. EEOC v. Konica Minolta Bus. Solutions U.S.A., Inc., 2011 WL 1602064 (7th Cir. Apr. 29, 2011). The employee alleged that he was disciplined and ultimately terminated because he was African-American, and during the EEOC’s investigation of his claim, the Commission learned a number of facts that generated cause for concern. Indeed, the EEOC discovered that only 6 of the defendant’s 120 sales employees were African-American, and all were assigned to the same territory in a predominantly black neighborhood. Id. at *1. This led the Commission to subpoena certain specified information about the employer’s hiring practices, designed to verify whether it intentionally limited African-American job opportunities to that particular area. The company refused to provide the information, saying it was irrelevant to the employee’s charge because he had only challenged the circumstances of his termination, not his hiring.
By Employment in the U.S. Is a Substantive, Not Jurisdictional, Requirement
In Rabe v. United Air Lines, Inc., 2011 WL 677946 (7th Cir. Feb. 28, 2011), the Seventh Circuit ruled that the defendant airline was basically too clever for its own good.
Ms. Rabe was a French citizen who worked for United Air Lines at the company’s hub in Paris. At the beginning of her employment, she signed an employment agreement stating that U.S. law would apply to her relationship with the company and would govern any dispute arising from it. So, when she was eventually terminated by United, Ms. Rabe sued in the Northern District of Illinois, claiming discrimination under Title VII and the ADEA.
FLSA Collective Action Plaintiffs Entitled to Discovery of Similarly Situated Employees from the Outset
A recent decision from the Eastern District of Tennessee has resolved some ambiguity regarding the proper scope of discovery when a plaintiff seeks to have her case certified as a collective action under the FLSA. In Burdine v. Covidien, 2011 WL 613247 (E.D. Tenn. Feb. 11, 2011), Plaintiff sued her former employer for unpaid overtime compensation, bringing the case on behalf of herself and the company’s “other pharmaceutical sales employees.” Discovery was accordingly bifurcated on the issue of certification to address, first, whether certification as a collective action was proper and, if so, how to best define the collective group or class. Id. at *1. In the Sixth Circuit, the first stage of that process is commonly referred to as “conditional certification,” and to obtain it, a plaintiff must make a “modest factual showing” that his/her position is “similar to the putative class members.” Id. (citing Comer v. Wal-Mart Stores, 454 F.3d 544, 546-47 (6th Cir. 2006)).
Discovery of Plaintiff’s Current Employment Records in Suit Against Former Employer
In lawsuit brought by plaintiff against her former employer, the former employer served a subpoena for plaintiff’s personnel records on plaintiff’s new employer. Plaintiff moved to quash and/or for a protective order. The Court held that the employment records of plaintiff’s current employer would not provide any information relating to whether plaintiff had previously been fired by the former employer. Hood v. Fiberweb, Inc., 2010 WL 4102219 (M.D. Tenn. Oct. 18, 2010).
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