Judge Backs EEOC’s Right to Investigate Company-Wide Policy Based on Applicant’s Allegation That Company Required Unlawful Pre-Offer Health Questionnaire

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U.S Equal Employment Opportunity Commission PHONE (305) 808-1740
Miami Tower TTY (305) 808-1742
100 S.E. 2nd Street, Ste. 1500 FAX (305) 808-1835
Miami, FL 33131

September 18, 2014

Robert E. Weisberg
Regional Attorney
(305) 808-1789

Kimberly A. McCoy Cruz
Supervisory Trial Attorney
(305) 808-1790

Aarrin Golson
Trial Attorney
(305) 808-1783

Judge Backs EEOC’s Right to
Investigate Company-Wide Policy
Based on Applicant’s Allegation That Company Required Unlawful
Pre-Offer Health Questionnaire
TAMPA, Fla. – A federal court has ordered KB Staffing, Inc., a staffing firm servicing
central Florida, to comply with an administrative subpoena issued by the U.S. Equal
Employment Opportunity Commission (EEOC), the agency announced today. The subpoena,
issued in December 2013, seeks information pertaining to a charge filed with the agency alleging
that KB Staffing discriminated against current and prospective applicants for employment and/or
employees because of improper health questionnaires.
The EEOC’s litigation is based on the company’s refusal to comply with a subpoena
issued during the course of an investigation. The charge alleged that a job applicant was not
hired for a position with KB Staffing because she refused to complete a pre-offer health
questionnaire. Based on that, the EEOC charged the company with violating the Americans With Disabilities Act (ADA). KB Staffing argued that the EEOC’s subpoena exceeded the scope of the charge and that the request for three years’ worth of documents was too broad.
The court rejected KB Staffing’s arguments, finding that the subpoena issued by the EEOC was within the agency’s authority and was relevant to the charge. U.S. Magistrate Judge Anthony E. Porcelli wrote the recommendation, which was adopted in its entirety by U.S. District Court Judge James S. Moody, Jr. on September 16, 2014.
“EEOC maintains the authority to investigate whether KB Staffing engaged in systemic discrimination when it used a pre-offer health questionnaire during its application process, despite the victim-specific relief it could pursue on the Charging Party’s behalf and despite KB Staffing’s assertion that it ceased use of the health questionnaire as of December 2012,” the judge wrote (EEOC v. KB Staffing, LLC, No. 8:14-mc-41 (M.D.Fla. Aug. 28, 2014) (Report and Recommendation, A. Porcelli, M.J.).
The EEOC subpoena enforcement action was litigated by Supervisory Trial Attorney Kimberly A. Cruz and Trial Attorney Aarrin Golson, and the administrative investigation is being managed by Tampa Field Director Georgia Marchbanks.
“Systemic investigations are important to all charges handled by the EEOC, and the use of subpoenas is vital to carrying out those investigations” said Marchbanks. “We are pleased that the Magistrate and Judge gave us the go ahead to enforce our subpoena and continue our investigation.”
Eliminating policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC’s investigative or enforcement efforts, is one of six national priorities identified by the Commission’s Strategic Enforcement Plan (SEP).
The EEOC is responsible for enforcing federal laws against employment discrimination. The Miami District Office’s jurisdiction includes Florida, Puerto Rico and U.S. Virgin Islands. Further information is available at www.eeoc.gov.
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