Equal Emp't Opportunity Comm'n v. Randstad

685 F.3d 433

115 Fair Empl.Prac.Cas. (BNA) 801

26 A.D. Cases 897

45 NDLR P 156

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner–Appellant,

v.RANDSTAD; Randstad North American LP; Randstad General Partners (US); Randstad U.S. LP; Randstad Inhouse Services LP, Respondents–Appellees.

No. 11–1759.

United States Court of Appeals, Fourth Circuit.

Argued: May 15, 2012.

Decided: July 18, 2012.

ARGUED:Susan Ruth Oxford, U.S. Equal Employment Opportunity Commission, Washington, D.C., for Appellant. John S. Snelling, Lewis Brisbois Bisgaard & Smith, Atlanta, Georgia, for Appellees. ON BRIEF:P. David Lopez, General Counsel, Lorraine C. Davis, Acting Associate General Counsel, U.S. Equal Employment Opportunity Commission, Washington, D.C., for Appellant. Christopher W. Mahoney, Duane Morris, LLP, Washington, D.C., for Appellees.

Before DAVIS and KEENAN, Circuit Judges, and JAMES R. SPENCER, United States District Judge for the Eastern District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Judge DAVIS wrote the opinion, in which Judge KEENAN and Judge SPENCER joined.

OPINION

DAVIS, Circuit Judge:

Kevin Morrison, a resident of Maryland, was born in Jamaica and cannot read or write English. He filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC” or Commission) asserting that Appellee Randstad, which provides temporary staffing services to client companies, terminated his employment pursuant to a requirement that its employees read and write English. Morrison alleged that Randstad's literacy policy violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Two years later, in an amended charge, Morrison asserted that the literacy policy violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., because he has a learning disability. In investigating Morrison's charges, the EEOC served an administrative subpoena on Randstad, which Randstad resisted, in part. When the EEOC sought judicial enforcement of its subpoena, the district court denied relief. For the following reasons, we reverse the order of the district court denying enforcement.

I.

A.

Randstad has 600 branch offices in thirty-seven states, including thirteen offices in Maryland. In any given week the company employs a total of approximately 45,000 individuals: 1,800 (Randstad's “internal talent”) who recruit, screen, and hire temporary and permanent employees for client companies, and 43,200 (Randstad's “external talent”) who are on assignment to Randstad's customers. Randstad focuses its staffing services on two main types of clients: “light industrial” clients that use laborers in manufacturing or warehouse settings, and “administrative” clients that use clerical and administrative employees in office settings.

In August 2005, Morrison approached Randstad's Hagerstown, Maryland office, seeking temporary employment. He was ineligible for assignment with Randstad's administrative clients because he does not have a high school diploma or its equivalent, and so Randstad placed him in industrial positions. He first successfully completeda month-long assignment as a mail clerk for Randstad client Good Humor. In September 2005, Randstad referred Morrison to two temporary warehouse positions, one at Ashley Home Store, Inc., and the other at Cosmic Pet Products, Inc. According to Randstad, both clients terminated Morrison within days because of poor performance. During that time Randstad was not aware that Morrison could not read or write.

Morrison did not seek any additional assignments for more than a year. In September 2006, however, he returned to Randstad's Hagerstown office in search of another temporary work assignment. As before, Randstad sent him to fill a warehouse job, this time with Lenox, Inc. Upon arriving at Lenox's facilities, he was asked to fill out some forms. Unable to read or write, Morrison called his placement manager at Randstad to ask if she would help him complete the forms. According to Morrison, the manager told him, “We don't hire people who cannot read. Come back when you learn to read.” J.A. 30. On September 28, 2006, Randstad ended Morrison's assignment and informed him that, although it remained willing to place him in the future, it would do so only if he were to develop remedial reading and writing skills.

On January 5, 2007, Morrison filed a charge of discrimination with the EEOC. A checkbox on the form identified the type of discrimination as national origin discrimination and the following allegations stated:

I. On September 29, 2006, Randstad denied me placement in a position with its customer Lenox. Randstad had previously placed me in jobs in 2005 and 2006. Randstad sent me to Lenox where I was given forms to complete and return. I called Randstad and spoke with Renee. I asked Renee if Randstad could assistance [sic] me in completing the forms I received from Lenox. I was told “We don't hire people who can not read. Come back when you learn to read.”

II. I was given no explanation for Randstad's discriminatory action.

III. I believe I have been discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended, regarding failure to hire because of my national origin, Jamaican.

J.A. 30. The EEOC served a copy of the charge on Randstad on February 1, 2007, and began to investigate.

Randstad timely responded to the charge. It admitted that Morrison was terminated because he could not read, but denied that the termination was the result of national origin discrimination. Rather, Randstad explained, the company maintained an unwritten policy against hiring people who cannot read because “virtually all of the assignments that Randstad is called upon to fill require reading and/or writing skills.” J.A. 36. As for the administrative positions, most of Randstad's clients have minimum education requirements; indeed, the EEOC has since conceded that Morrison was not eligible for an administrative position. As for Randstad's industrial clients, the company explained that although there is no written policy requiring that employees be literate, “the inability to read and comprehend safety notices, warnings, or machinery operating instructions potentially [would] place[ ] Mr. Morrison and his co-workers at risk of serious injury.” J.A. 36. Because the company's unwritten literacy policy was justified, Randstad argued, and because there was “no evidence of discriminatory animus on Randstad's behalf toward Mr. Morrison,” the EEOC should enter a “no cause” finding in Morrison's case. Id.

The EEOC investigation remained open for approximately two years without the Commission issuing a Request for Information or seeking any other information concerning Morrison's allegations. During that time Morrison underwent a psychological evaluation that revealed “an intellectual disability (mild retardation) that prevents him from reading and writing.” J.A. 11. On January 30, 2009, over two years after filing the original charge, Morrison filed an amended charge of discrimination. The amended charge contained two changes. First, instead of the checkbox for national origin discrimination, the checkbox for disability discrimination was marked. Second, in the last sentence of the factual allegation section, the allegation that Randstad's actions violated Title VII was replaced with the following: “I believe I have been discriminated against in violation of the [ADA] regarding failure to accommodate because of my disability.” J.A. 39. As the EEOC explained, Morrison allegedly has a learning disability that prevents him from learning to read and write English.¹

Randstad was given notice of the amended charge on February 3, 2009. In response, Randstad stated that its original position statement was “largely unaffected” by the amendment, but it “supplement[ed]” its prior letter by arguing that Morrison's charge of disability discrimination lacked merit because illiteracy is only a protected disability under the ADA if it “stems from ‘an organic dysfunction rather than a lack of education,’ ” J.A. 44 (quoting Morisky v. Broward County, 80 F.3d 445 (11th Cir.1996)), and there was “no evidence that Mr. Morrison's illiteracy follows from a physical or mental impairment.” Id. Randstad also argued that, even if Morrison's illiteracy was a protected disability, he had an obligation to inform Randstad of the impairment but failed to do so.

The EEOC issued a Request for Information (“RFI”) seeking, among other things, information about any literacy requirements Randstad imposes, and a list of all position assignments made by Randstad's Hagerstown office from 2006 through 2009.² In response, Randstad explained that although the company did not have a “formal” literacy policy, “a significant number of assignments ... require reading and writing skills,” and so Randstad “requires talent to be at least literate at a remedial level.” J.A. 53. As for information on other position assignments, Randstad objected, arguing the request was “unduly burdensome” and that the information requested was “irrelevant to the resolution of [Morrison's] charge.” J.A. 54.

The EEOC maintained that Morrison's charge authorized it to obtain the requested information, and not just for Randstad's Hagerstown office. Thus, on January 15, 2010, it issued an administrative subpoena that requested, among other things, “documents or a data compilation setting forth all position assignments made by [Randstad] during the period January 1, 2005 through the present.” J.A. 59. After Randstad objected to the time period and nationwide scope of the subpoena, the Commission narrowed the geographic scope to Randstad's thirteen Maryland offices but otherwise insisted on receiving information on all position assignments made by those offices for the years 2005 through 2009. Randstad provided information about the positions to which Morrison himself was...