Discovery of the EEOC s Policies in EEOC-Filed Litigation By Reed L. Russell and Craig S. Dawson, Phelps Dunbar LLP

Transcription

1 Discovery of the EEOC s Policies in EEOC-Filed Litigation By Reed L. Russell and Craig S. Dawson, Phelps Dunbar LLP In its recently-issued Strategic Enforcement Plan for 2013 through 2016, the Equal Employment Opportunity Commission ( EEOC ) identified a national priority of eliminating barriers in recruitment and hiring. Specifically, the EEOC has announced that it will target facially neutral recruitment and hiring practices that adversely impact particular groups. 1 Such practices may include employers use of pre-employment tests, background checks, and other screening tools. The EEOC has filed lawsuits challenging employers use of background checks in applicant screening, in particular the evaluation of applicants credit or criminal record histories. The EEOC has alleged that, although facially neutral, the use of such histories as employment screening or selection tools has an adverse impact on black, Hispanic, or male applicants in violation of Title VII of the Civil Rights Act of 1964, as amended, and that such screening tools as used by the employers in question are not defensible as job related and consistent with business necessity. The EEOC also issued in 2012 an enforcement guidance on the use of criminal histories in hiring decisions. Both the EEOC s filing of lawsuits and its enforcement guidance have been controversial, in part because, as a federal agency, the EEOC conducts credit and criminal history inquiries of some its applicants. Some employers forced to defend their hiring practices in lawsuits brought by the EEOC have sought discovery concerning the EEOC s practices with regard to credit and criminal history inquiries, in an effort to draw parallels that might indicate the employers challenged conduct is justified, or that EEOC is not in a position to challenge the use of such practices, given its own conduct. Numerous courts have permitted depositions of the EEOC in cases it has filed, given that it is a plaintiff in the lawsuit and subject generally to the same rules of discovery as other litigants. 2 Nevertheless, the EEOC has often resisted such discovery. In two cases the EEOC has brought challenging employers evaluation of credit histories and criminal histories in considering applicants for employment EEOC v. Kaplan Higher Education Corp. and EEOC v. Freeman the parties engaged in significant briefing over 1 U.S. EEOC Strategic Enforcement Plan FY , available at 2 See, e.g., EEOC v. Kaplan Higher Educ. Corp., No. 1:10-cv-2882, 2011 WL , at *3 (granting 30(b)(6) deposition and collecting cases); see also id. at *2 ( The Federal Rules of Civil Procedure provide for broad discovery between parties.... Fed. R. Civ. P. 26(b)(1). Government agencies are not exempt from this rule. ).

2 whether and to what extent the EEOC would have to submit to discovery regarding its policies. The following is a review of the court decisions addressing those issues, focused primarily on whether the employers could obtain discovery (and to what extent) about the EEOC s policies on evaluating applicants credit and criminal histories in employment to support the employers defenses of Title VII business necessity and common law equitable estoppel. I. Discoverability of Information Concerning the EEOC s Practices, on Grounds that Such Information is Relevant to an Employer s Business Necessity Defense a. EEOC v. Kaplan Higher Education Corporation In EEOC v. Kaplan Higher Education Corporation, 3 the EEOC filed suit against Kaplan under Title VII, alleging that Kaplan s use of credit history checks constituted a nationwide pattern or practice of race discrimination against black job applicants and current employees. Kaplan asserted, among other defenses, that its practice was job-related and justified by business necessity. 4 During discovery, Kaplan served the EEOC with a Rule 30(b)(6) Notice of Deposition, listing various topics of inquiry, including the EEOC s [r]equirements, policies, practices, or procedures relating to: a) the performance of background or credit checks on any employees or applicants for employment with the EEOC, and b) the EEOC s use or consideration of information obtained from those credit checks. 5 The EEOC objected to the Notice and indicated that it would not designate a Rule 30(b)(6) designee, prompting Kaplan to file a motion to compel. Kaplan argued that it was entitled to information concerning the EEOC s own practices, because the EEOC s use of pre-employment screening tools is relevant to how the EEOC interprets its own guidance on valid business necessity for the use of such tools. 6 Noting that Congress charged the EEOC with the responsibility to interpret Title VII, Kaplan argued that the EEOC s interpretive guidance can be evidenced not only by the regulations or statements it issues, but also by its internal practices. As the EEOC s practices are presumably the best informed practical application of the law, Kaplan asserted that they provide strong evidence of 3 1:10 CV 2882 (N.D. Ohio). 4 Employees working in Kaplan s financial aid department must utilize the National Student Load Data System ( NSLDS ), the Department of Education s ( DOE ) student loan database. The DOE requires institutions that use the NSLDS to have quality controls in place to limit access to student and parent information. Kaplan implemented the credit checks sometime after discovering breaches of their systems in which student payments were misappropriated. 5 See Kaplan, 2011 WL , at *1 (N.D. Ohio May 27, 2011).. 6 Id. at *2.

3 the EEOC s view regarding permissible implementation and use of credit checks and are, therefore, relevant to Kaplan s business necessity defense. 7 The EEOC countered that the information was privileged, but that, in any case, its selection criteria were wholly irrelevant in determining whether Kaplan s practice violated Title VII. 8 Rather, the EEOC argued that only Kaplan s practices and defenses were at issue, and [p]roof that any other employer (including EEOC) applies similar criteria has no bearing on whether Defendant can prove that its use of such criteria was justified. 9 In its reply, Kaplan again stressed that the EEOC was not simply any other employer. Given the EEOC s specialized function of interpreting Title VII, Kaplan argued, the EEOC s use of credit checks can provide guidance about what constitutes the acceptable business necessity that would justify the practice. 10 The court agreed with Kaplan. In its Order requiring the EEOC to produce a Rule 30(b)(6) designee for deposition, the court summarily stated that [w]hether the EEOC uses background or credit checks in hiring its employees is relevant to whether such measures are a business necessity. 11 To the extent the EEOC believed the requested information was privileged, the court stated that the agency could raise such objections during the deposition. 12 Kaplan also later became aware that the EEOC did not produce all relevant documents in its possession during discovery. The EEOC s hiring practices, like other federal agencies, are guided by the United States Office of Personnel Management (OPM), and so the EEOC directed Kaplan to OPM for certain documents. Kaplan subpoenaed OPM, but was advised that the 7 Def. s Mem. of Law in Supp. of Its Mot. to Compel Rule 30(b)(6) Dep., at 11-12, EEOC v. Kaplan Higher Educ. Corp., No. 1:10 CV 2882 (N.D. Ohio Apr. 22, 2011). 8 EEOC s Opp n to Def. s Mot. to Compel, at 14, EEOC v. Kaplan Higher Educ. Corp., No. 1:10 CV 2882 (N.D. Ohio May 9, 2011). 9 Id. 10 See Def. s Reply in Supp. of Its Mot. to Compel Rule 30(b)(6) Dep., at 12, EEOC v. Kaplan Higher Educ. Corp., No. 1:10 CV 2882 (N.D. Ohio May 18, 2011). 11 Kaplan, 2011 WL , at *4. 12 The deposition notice also sought factual information about the EEOC s determination of disparate impact, policies and procedures impacting the scope of its investigation and pursuit of disparate impact claims involving the use of credit histories, and its analysis of disparate impact. Id. at *1. The court granted the motion to compel a 30(b)(6) witness on these topics, rejecting the EEOC s argument that testimony would require disclosure of work product or testimony by counsel (an investigator could be designated), and also finding that objections based on privilege were premature. Id. at *2-3 ( Government agencies are not exempt from [Rule 26(b)(1) s mandate of broad discovery between parties. ). The court also rejected the argument that the scope of the EEOC s investigation was beyond discovery, finding that a Sixth Circuit decision had held only that the sufficiency of the EEOC s investigation before it issued a reasonable cause determination was not subject to review. Id. at 4. This paper is focused primarily on the discovery of the EEOC s internal practices regarding credit and criminal histories.

4 EEOC was responsible for making its own employment and hiring decisions subject to binding guidance from the OPM, and that any relevant records concerning the EEOC s determinations about applicants and employees credit histories were created by and could be obtained from the EEOC. Kaplan then requested such documents from the EEOC and received an EEOC Handbook in response. The Handbook indicated that credit checks were required for all individuals applying for positions designated by the EEOC as high or moderate risk. Kaplan later served an Amended Rule 30(b)(6) Notice, seeking documents and testimony regarding the job descriptions for all high or moderate risk positions, as well as the EEOC s basis for making its risk level designations. Again, the EEOC objected. 13 In a subsequent motion to compel, Kaplan again focused on the EEOC s unique responsibility of interpreting Title VII in arguing that the EEOC s practices were relevant to Kaplan s defenses. Namely, Kaplan argued that the EEOC made a judgment that the vast majority of its positions require credit checks. 14 The EEOC s determination, Kaplan urged, demonstrates the types of job duties that the EEOC believes warrant the use of a credit check, and it shows the business necessity that the EEOC believes justifies its own use of credit. 15 In its Response, the EEOC drew a contrast between Kaplan s purpose in utilizing credit checks and its own. The EEOC asserted that an EEOC employee s credit history or debt background does not have anything to do with the employee s effective performance. 16 Specifically, the EEOC argued, it is not considered an indicator that an employee is more likely to steal or otherwise pose a threat to government assets, and the EEOC s designee testified that it had never adjudicated an applicant or employee unfavorably because of debt. 17 Moreover, the EEOC stressed that the position designation process is governed by OPM guidance, unique to government service, and has no applicability to Kaplan s business model. The EEOC also argued that its involvement in background investigations is minimal and 13 See Kaplan, 2012 WL , at *1-3 (Apr. 18, 2012). 14 Def. s Mem of Law in Supp. of Its Mot. to Compel Produc. of Docs. and Info. and Rule 30(b)(6) Witness, at 12, EEOC v. Kaplan Higher Educ. Corp., No. 1:10-CV-2882 (N.D. Ohio Apr. 6, 2012). 15 Id. at EEOC s Opp n to Def. s Mot. to Compel, at 3, EEOC v. Kaplan Higher Educ. Corp., No. 1:10-CV-2882 (N.D. Ohio Apr. 12, 2012) (emphasis in original). 17 Id. at 11. The EEOC explained that, where the results of a credit check hinder a favorable background decision, the EEOC offers the applicant or employee the opportunity to mitigate the circumstances, to explain how they got in a problematic debt situation, and to develop a plan to rectify it. Id. at 13. As long as the applicant or employee provides sufficient information indicating that he or she is working on resolving the debt issues, the EEOC favorably adjudicates the background investigation, and it does not later follow up to confirm that the issues were, in fact, mitigated. Id. (emphasis in original).

5 mandated by OPM. According to the EEOC, it merely gathers information from employees by asking them to fill out OPM standard forms, as required; it is OPM that conducts the credit check and analyzes the financial information provided. Further contesting the argument that its use of credit checks somehow constitutes guidance or otherwise reflects its views of what is permissible under Title VII, the EEOC went so far as to state that it disagrees with OPM s practices. As noted by the EEOC, it had formally advised OPM that OPM should either eliminate or significantly restrict its inquiries about federal applicants and employees financial information. 18 The court was not persuaded by these arguments and granted Kaplan s motion to compel. In granting Kaplan s motion, the court found that information obtained by Kaplan indicated that the EEOC was responsible for making risk level designations for positions, and that those designations constitute the critical determinant of whether an EEOC position is subject to a credit check. 19 As such, how and why the EEOC makes risk level designations for position descriptions is relevant to Kaplan s defense of business necessity, and could be explored. 20 b. EEOC v. Freeman In an ongoing case before the United States District Court for the District of Maryland, the EEOC s hiring practices have once again become the subject of a prolonged discovery battle. In EEOC v. Freeman, 21 the EEOC alleges that Freeman, a nationwide convention, exhibition and corporate events marketing company, engaged in a pattern and practice of unlawful discrimination against black, Hispanic, and male job applicants by examining their criminal and credit histories during the hiring process. As in Kaplan, Freeman served on the EEOC a Rule 30(b)(6) Notice of Deposition. The topics covered by the Notice included the EEOC s policy and practice concerning its consideration of arrests or criminal conviction records, as well as its consideration of credit history or other financial records. Freeman also sought testimony regarding the EEOC s justifications for considering such information in making hiring decisions. 18 Id. at Kaplan, 2012 WL , at *4. 20 Id. 21 No. 8:09-cv RWT (D. Md.)

6 The EEOC filed a motion for protective order, objecting to the Notice on several grounds. First, the EEOC asserted that the information sought was not relevant to any claim or defense, including Freeman s defense of business necessity. Citing the United States Supreme Court s decision in Griggs v. Duke Power Company, 22 the EEOC stressed that, in order to establish a business necessity defense, Freeman must show that the particular manner in which it uses background information bear[s] a demonstrable relationship to successful performance of the jobs for which it was used. 23 The EEOC argued that the defense is, therefore, employer- and job-specific, and whether the EEOC considers certain information during the hiring process has no bearing whatsoever on whether Defendant s use of such information for selection for its own jobs is job-related and consistent with business necessity. 24 Moreover, the EEOC asserted that, even if it engaged in precisely the same practices as Freeman, that fact would merely beg the question of whether those shared practices are lawful, a determination that must still be made on an employer-specific basis. 25 The EEOC cited a number of decisions in support of its arguments, though only two of those decisions involved discovery disputes. In one of those two cases, 26 United States v. New York Metropolitan Transportation Authority, 27 the Department of Justice ( DOJ ) brought suit against the defendant under Title VII, alleging failure to accommodate employees religious beliefs requiring head coverings. During discovery, the defendant filed a motion to compel answers to interrogatories demanding that the DOJ describe the manner in which the federal government accommodated the religious beliefs of certain categories of federal employees. The court found that the United States employment practices were not relevant and denied the defendant s motion, as the defendant fail[ed] to point to any factual similarities in the circumstances of employment between it and any federal agency U.S. 424 (1971). 23 Pl. EEOC s Mem. in Supp. of Mot. for Protective Order, at 6, EEOC v. Freeman, No. 8:09-cv RWT (D. Md. Apr. 13, 2012) (emphasis in original) (quoting Griggs, 401 U.S. at 431 (1971)). 24 Id. at 8 (emphasis in original). 25 Id. at The EEOC also cited EEOC v. JBS USA, LLC, No. 8:10CV318, 2012 WL (D. Neb. Jan. 19, 2012), in which the court barred deposition of an EEOC designee in a religious accommodation case, on the grounds the EEOC s accommodation of its employees was not relevant to the case. The court in Freeman, however, noted that it was reluctant to rely on the unpublished decision of the District of Nebraska... because the decision does not sufficiently explain why the deposition would seek irrelevant information, and the case involved a different underlying claim. Freeman, 2012 WL , at *3 (D. Md. Aug. 14, 2012). 27 No. CV (SLT)(MDG), 2006 WL (E.D.N.Y. Jan. 12, 2006). 28 Id. at *1.

7 Relying partly on Kaplan, Freeman argued that it was entitled to discover how and why the EEOC uses credit and criminal history information, as the limited information available to Freeman indicated that there were at least certain similarities between the parties practices. For instance, both the EEOC and Freeman designate certain positions as requiring credit checks public trust positions in the EEOC s case, and credit sensitive positions in Freeman s so the manner in which the EEOC makes its designations may be relevant to Freeman s business necessity defense. As for criminal background information, Freeman noted that both it and the EEOC consider similar factors (i.e. nature of the offense, recency of the conduct, and the nature of the position to be filled) in adjudicating applicants with criminal records. To the extent there are any distinctions between the parties practices, Freeman argued, that fact would go to the probative value of the evidence Freeman seeks, not to its relevance. 29 In addition to arguing that the information sought was not relevant to any claim or defense, the EEOC stressed its minimal role in the federal government s background check process, as well as the differences between that process and Freeman s practices. As in Kaplan, the EEOC claimed that the process is mandated by OPM, stating that while EEOC security personnel are involved in the adjudication step of the process, they have no independent authority to adjudicate; rather, they do so standing in the shoes of OPM. 30 Moreover, the EEOC stated, the final determination as to whether an individual has passed the OPM suitability criteria is made solely by OPM. The EEOC also pointed out that, while Freeman reviews applicants credit histories to look for indicia of financial responsibility or dishonesty that might predict on-the-job behavior, the EEOC s review is conducted only to ensure the applicant will satisfy the ethical obligation of a federal employee... to pay their debts. 31 Freeman disagreed with the EEOC s characterization of its role in suitability reviews, including the EEOC s statement that determinations are made solely by OPM. Freeman argued that information obtained to date, as well as testimony by the EEOC designee in Kaplan, 29 Mem. In Opp n to Pl. s Mot. for Protective Order, at 10, EEOC v. Freeman, No. 8:09-cv RWT (D. Md. May 4, 2012). 30 Pl. EEOC s Mem. in Supp. of Mot. for Protective Order, at 15, EEOC v. Freeman, No. 8:09-cv RWT (D. Md. Apr. 13, 2012). 31 Id. at 18 (emphasis omitted).

8 indicated a much greater level of involvement by the EEOC. As such, Freeman claimed it was entitled to take discovery to determine the extent to which the [EEOC s] statement is false. 32 In a further attempt to avoid such discovery, the EEOC argued that the deposition would be cumulative, burdensome, and duplicative of publicly available information. In particular, the EEOC noted that a designee had already been deposed in Kaplan concerning use of credit check history, and the transcript of that deposition is a matter of public record. It also identified numerous policy statements, opinion letters, and other sources of guidance that are publicly available. 33 Finally, the EEOC supported its position by invoking a slippery-slope argument, warning that [i]f Defendant s argument were to be accepted by this Court... then EEOC s employment practices will be discoverable in almost every case for one purpose or another. 34 According to the EEOC, [v]irtually every EEOC-initiated lawsuit will become a dual-track inquiry into both parties practices, potentially detracting and derailing the EEOC s enforcement efforts. 35 The EEOC cited as an example another case relied upon by Freeman EEOC v. Bloomberg L.P. 36 In that case, which was brought under the Pregnancy Discrimination Act, the United States District Court for the Southern District of New York authorized discovery into whether the EEOC provides on-site child care or lactation rooms at its offices. This, the EEOC contended, cannot be the correct result. 37 The Freeman court, however, held that none of the EEOC s arguments supported a protective order. As for the EEOC s argument that Freeman s business necessity defense was baseless, the court explained that, at the discovery stage, it must only determine whether the deposition seeks information relevant to the defense or reasonably calculated to lead to the discovery of admissible evidence. Citing Kaplan, the court stated that, if [the EEOC] uses hiring practices similar to those used by Defendant, this fact may show the appropriateness of 32 Mem. In Opp n to Pl. s Mot. for Protective Order, at 16, EEOC v. Freeman, No. 8:09-cv RWT (D. Md. May 4, 2012). 33 See Pl. EEOC s Mem. in Supp. of Mot. for Protective Order, at 19, 24-25, EEOC v. Freeman, No. 8:09-cv RWT (D. Md. Apr. 13, 2012). 34 EEOC s Reply Regarding Mot. for Protective Order, at 15, EEOC v. Freeman, No. 8:09-cv RWT (D. Md. May 28, 2012) (emphasis in original). 35 Id. at No. 07 Civ. 8383(LAP), 2010 WL (S.D.N.Y. Aug. 4, 2010). 37 EEOC s Reply Regarding Mot. for Protective Order, at 17, EEOC v. Freeman, No. 8:09-cv RWT (D. Md. May 28, 2012).

9 those practices, particularly because Plaintiff is the agency fighting unfair hiring practices. 38 Freeman was not required to accept the EEOC s assertions that the parties practices were dissimilar. Moreover, the court found that, unlike in United States v. New York Metropolitan Transportation Authority, Freeman had pointed to similarities between its hiring practices and those of the EEOC. The court also rejected the EEOC s argument that the EEOC does not formulate or conduct all of its hiring practices, and that those practices are mandated by OPM. As stated by the court, the EEOC does play a role in the process and seems to make the final determination as to whether an individual will be offered employment or remain employed by [the EEOC]. 39 Further, even if it is true that the EEOC is merely following OPM-required procedures, the EEOC is involved in the hiring process at least to some extent, and so deposition testimony by the EEOC s designee concerning its actual involvement in that process and the process itself would provide relevant information. 40 Finally, the court found that Freeman should not be required to rely on another party s deposition of Plaintiff in a different case in formulating a defense in this case. 41 As such, the fact that the EEOC s designee was deposed in Kaplan did not preclude Freeman from inquiring into similar issues. Additionally, because Kaplan did not involve the use of criminal background checks, the EEOC failed to meet its burden of showing that the deposition Freeman sought would be duplicative. The dispute over Freeman s access to information concerning the EEOC s policies and practices picked up again during the ensuing deposition ordered by the court. The EEOC presented a designee to testify regarding two of the eleven topics identified in the Rule 30(b)(6) Notice, with another designee to testify regarding the remaining nine topics at a later date. The two topics for which the first witness was produced included the identification of and verification of EEOC s policy guidance concerning the legal standards applicable to Title VII disparate impact challenges to an employer s use of arrest or conviction records, as well as credit history or other financial records, in making hiring and other selection decisions. During the deposition, counsel for the EEOC instructed the designee not to answer numerous questions, 38 Freeman, 2012 WL , at *2 (D. Md. Aug. 14, 2012). 39 Id. at *3. 40 Id. 41 Id. at *4.

10 case. 43 The court agreed with the EEOC that the questions concerning the EEOC s intent behind including questions as to whether the EEOC intended its enforcement guidance to be binding on the EEOC itself, its general counsel, and/or private employers. Freeman responded by filing a motion to compel responsive testimony. In its motion, Freeman argued that none of counsel s objections raised during the deposition vagueness, ambiguity, calling for legal opinion, misleading, badgering, and outside the scope of the Rule 30(b)(6) Notice are proper grounds for instructing a witness not to answer. The EEOC responded that, with the exception of all but one question, the designee was allowed to respond and did so to the best of her ability and personal knowledge, in her individual capacity, as the EEOC maintained that the questions were outside the scope of the Notice. It asserted that the designee was only instructed not to respond upon being asked the same questions again. 42 The EEOC further argued that whether the EEOC intended its guidance to be binding on the EEOC or various other entities was not relevant to the claims or defenses in the its guidance were outside the scope of the Notice, stating that [n]othing in identification and verification suggests that the deponent should be prepared to discuss the EEOC s mental state or intentions in formulating its policies and procedures. 44 Even as to those questions, however, the court agreed with Freeman that it was improper for the EEOC s counsel to instruct the designee not to answer, as counsel may only instruct a deponent not to answer when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3) [to terminate or limit the deposition]. 45 Nevertheless, the court held that, in light of the fact that the questions regarding intent were outside the scope of the Notice, compelling answers to them was unnecessary. The court also noted that Freeman s line of questioning about whom the EEOC intended to bind by its enforcement guidance was likely to infringe on the deliberative process privilege, since the questions appear to seek information regarding the agency s mental state and goals during its deliberations. 46 The court reserved ruling on this issue, however, having already 42 EEOC s Resp. in Opp n to Def. s Mot. to Compel Test. of 30(b)(6) Witness, at 26-28, EEOC v. Freeman, No. 8:09-cv RWT (D. Md. Nov. 9, 2012). 43 Id. at Freeman, 2012 WL , at *6 (D. Md. Dec. 19, 2012). 45 Id. at *6 (quoting Fed. R. Civ. P. 30(c)(2)). 46 Id. at *8.

11 determined that the questions were outside the scope of the 30(b)(6) Notice. As such, it is unclear whether the EEOC would have been compelled to answer such questions had they been encompassed by the Notice. II. Discoverability of Information Concerning the EEOC s Practices, on Grounds that Such Information is Relevant to an Employer s Equitable Estoppel Defense The defendants in Kaplan and Freeman also argued that information concerning the EEOC s own hiring practices was relevant to an equitable estoppel defense. In Kaplan, for example, the defendant asserted that the doctrine of estoppel may bar a plaintiff from prosecuting certain claims when it is simultaneously engaging in nearly identical conduct. 47 Kaplan argued, therefore, that the extent to which the EEOC s use of criminal background and credit checks overlap with Kaplan s own challenged practices informs the scope of Kaplan s estoppel defense. 48 The EEOC first attacked Kaplan s premise that the government could be estopped from prosecuting claims where it engages in similar conduct, noting that the United States Supreme Court has refused to hold that estoppel could ever be successfully asserted against the Government. 49 Even if estoppel was an available defense, the EEOC argued, a party attempting to estop the government bears the very heavy burden of demonstrating that the government intentionally misled it to engage in specific conduct. 50 Kaplan countered by citing numerous Sixth Circuit decisions recognizing the availability of an estoppel defense against the government. It further argued that, even if an estoppel defense may be difficult to establish, [d]iscovery on a claim or defense is not bounded by the probability that the claim or defense will succeed. 51 At the discovery stage, therefore, the question is not whether the claim or defense is a strong one, but whether the information sought may be relevant to that claim or defense. The court did not expressly address the parties arguments regarding the estoppel defense. 47 Def. s Mem. of Law in Supp. of Its Mot. to Compel Rule 30(b)(6) Dep., at 12, EEOC v. Kaplan Higher Educ. Corp., No. 1:10 CV 2882 (N.D. Ohio Apr. 22, 2011). 48 Id. 49 EEOC s Opp n to Def. s Mot. to Compel, at 14, EEOC v. Kaplan Higher Educ. Corp., No. 1:10 CV 2882 (N.D. Ohio May 9, 2011). 50 Id. at Def. s Reply in Supp. of Its Mot. To Compel Rule 30(b)(6) Dep., at 13, EEOC v. Kaplan Higher Educ. Corp., No. 1:10 CV 2882 (N.D. Ohio May 18, 2011).

12 The court did address Kaplan s estoppel argument in response to Kaplan s subsequent motion to compel, however, which sought deposition testimony concerning the EEOC s designation of certain positions as high, moderate, or low risk. In its April 2012 Order, the court stated that how or whether the EEOC uses credit checks may [] be relevant to Kaplan s estoppel defense if it is found that the EEOC s practices are consistent with the practices the EEOC challenges in this lawsuit. 52 As a result, Kaplan was entitled to obtain testimony regarding its theory. The defendant in Freeman made a similar argument, asserting that, to the extent the EEOC s use of credit and criminal checks was consistent with Freeman s, this consistency could support an estoppel defense. 53 The EEOC, however, pointed out that Freeman did not plead equitable estoppel as an affirmative defense. As such, the EEOC maintained that discovery concerning facts related to that defense was irrelevant. The EEOC also contended that, even if Freeman had pled the defense, it would ultimately not be able to establish the elements of estoppel, as no misrepresentation of fact by the government or detrimental reliance by Freeman had been alleged. Without addressing the parties arguments as to the relevance of the EEOC s practices to Freeman s estoppel defense, or Freeman s potential success in asserting it, the court found that Freeman s failure to plead the defense was dispositive unless or until such time as Freeman had filed and had granted a motion to amend its answer. 54 III. Conclusion The EEOC, as a party to litigation, is subject to the rules of discovery, including the requirement to present corporate representative witnesses under Federal Rule 30(b)(6). Kaplan and Freeman appear to suggest that, at least under circumstances where the EEOC is challenging as violative of Title VII s disparate impact provisions an employment practice that it may engage in as well even if the EEOC can argue that its approach to or purpose for that practice differs from that of the private employer a court may allow discovery into the EEOC s practices on the grounds that such discovery may lead to information relevant to an employer s defenses of business necessity and equitable estoppel. What that may mean to an employer s ability to 52 Kaplan, 2012 WL , at *4. 53 See Mem. In Opp n to Pl. s Mot. for Protective Order, at 21, EEOC v. Freeman, No. 8:09-cv RWT (D. Md. May 4, 2012). 54 Freeman, 2012 WL , at *2.

13 establish those defenses, however, remains to be seen. Notably, in a January 28, 2013 Order, the Kaplan court granted summary judgment for the defendant, finding that the EEOC failed to provide reliable statistical evidence of discrimination, as necessary in order to establish its prima facie case. 55 As such, the court did not address the merits of Kaplan s defenses of business necessity or estoppel, nor did it provide additional insight into what weight, if any, it would have given to evidence related to the EEOC s own practices. 56 Moreover, it is unclear to what extent such discovery may become a double-edged sword for employers. The EEOC asked rhetorically in one of its briefs whether, if an employer has practices that deviate sharply from the EEOC s on the issue in question, would that fact serve as relevant evidence of the employer s violation of the law? In the EEOC s view, Defendant cannot have it both ways. In light of the EEOC s stated focus on employers facially neutral hiring practices, these and many other questions are likely to be raised as employers continue to explore discovery strategies that implicate the EEOC s practices in similar circumstances. 55 Kaplan, 2013 WL , at *4 (N.D. Ohio Jan. 28, 2013). The EEOC sought reconsideration of this decision, but its motion was stricken for exceeding the page limit. As of the date of submission of this paper March 11, 2013 the EEOC had until March 18, 2013 to re-file its motion within the page limit. See Docket Report, 1:10 CV 2882 (N.D. Ohio). 56 Some courts in other contexts have taken note of the federal government s practices in ruling on claims by the government that such practices are unlawful as engaged in by private employers. See EEOC v. U.S. Steel Corp., No , 2013 WL , at *16, 20 (W.D. Pa. Feb. 20, 2013) (taking judicial notice of the fact that various government employers use random alcohol tests similar to those challenged by the EEOC in ADA discrimination case, and granting summary judgment for defendant on grounds that its practice was job-related and consistent with business necessity); Gate Guard Services L.P. v. Solis, 2013 WL (S.D. Tex. Feb. 13, 2013) (No. V 10 91) (finding that gate attendants were independent contractors not covered by the FLSA in and action brought by DOJ, and noting federal government s use of independent contractors to perform services substantially similar to those performed by gate attendants).