Using Agency Requests in Employment Cases (and Why They Can Take Forever)
by Ethan Krasnoo
A recent lawsuit making headlines this week offers a useful window into a tool that employment lawyers on both sides of the aisle use frequently — and into one of its most frustrating limitations. Specifically, last month, The New York Times sued the U.S. Equal Employment Opportunity Commission (“EEOC”) — the federal agency that enforces workplace discrimination laws — for failing to turn over records the newspaper had requested under the Freedom of Information Act (“FOIA”) in connection with defending an employment discrimination case. The New York Times sought internal EEOC communications and policy materials related to the agency’s approach to discrimination claims brought by white employees, a topic that has become more prominent at the agency in recent years. According to the Times’ complaint, the EEOC blew through the deadlines FOIA sets for responding, repeatedly pushed back a promised response date, and then canceled a scheduled call about the request without rescheduling it.
The underlying dispute — the Times is separately defending an EEOC discrimination lawsuit over a promotion decision — is its own story. But the FOIA fight itself illustrates something that comes up constantly in employment litigation: government agencies hold records that can be enormously useful to both employees and employers, and getting those records out of the agency can take a very long time.
FOIA is a federal law that lets any member of the public ask a federal agency for copies of its records, subject to certain exemptions (for example, information that would invade someone’s privacy or reveal internal deliberations). New York has its own version for state and local agencies (as do other states), called the Freedom of Information Law (“FOIL”). Both laws work in the same basic way: you submit a written request describing the records you want, and the agency is supposed to respond within a set number of business days — though, as the Times’ lawsuit shows, agencies frequently do not.
People often assume FOIA is a tool for journalists or watchdog groups. In employment cases, it is also a quiet workhorse for both sides. An employee who has filed a charge of discrimination with the EEOC or a state or local agency like the New York State Division of Human Rights can request a copy of the agency’s charge file, which may include materials such as witness statements, investigative materials, the employer’s position statement, and the agency’s own findings, subject to applicable confidentiality protections and exemptions. Agency records can also reveal how a company has responded to other complaints, which can support a pattern-or-practice argument, or can surface an agency’s policies and guidance on how it evaluates certain kinds of claims. Employers can use the same tools. An employer defending a discrimination or retaliation claim may request the agency’s full charge file to see exactly what the employee said, what any witnesses told the investigator, and how the agency reasoned through its determination. Employers also sometimes seek an agency’s internal policies or communications to understand how a novel legal theory is being applied agency-wide, much as the Times sought in its own request.
In both directions, these requests can supplement — but do not replace — the formal discovery process (e.g., document demands, depositions, subpoenas) that takes place once a lawsuit is filed. Often a FOIA or FOIL request turns up little new information in terms of substance and relevance, but sometimes a FOIA or FOIL request can provide access to certain government records that may not be available through ordinary discovery, because public-records laws provide a separate avenue for requesting government records
However, as anyone who has actually made one of these requests knows, agencies are often slow, and sometimes very slow, in responding — even though the statutes set firm deadlines. Sometimes, as is the case in matters I have worked on, obtaining the requested records can take nearly as long as, or even longer than, it takes for a case in its infancy to reach trial. The Times’ lawsuit is really a lawsuit about delay: it alleges that after missing its original deadline, the EEOC pushed its response date back, then went silent, then canceled a meeting to address the requests, and then never rescheduled it. Suing the agency to force compliance, as the Times did, is a real option, but it is its own piece of litigation with its own timeline.
Whether you are an employee considering a discrimination or retaliation claim, or a company defending one, a few practical takeaways follow from all this:
- Submit agency requests early, and do not wait for a lawsuit to be filed. Given how long these requests can take, the sooner one goes in, the better the odds it will be answered before you actually need the material.
- To the extent you can avoid it, do not build your case strategy around receiving the records on any particular timeline. Deadlines in FOIA and FOIL can be aspirational in practice. Plan for the possibility that a hearing or trial date arrives before the agency responds.
- Pursue other avenues in parallel. Formal discovery, a party’s own records, and information from opposing counsel often move faster than a request to a government agency, and should not be put on hold while waiting for an agency response.
Agency records can, at times, be genuinely valuable in an employment case, for employees and employers alike. However, it is important to go in with realistic expectations about the clock.
This article is provided for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. If you have questions about a specific workplace situation, you should consult with an attorney.
For more information, please contact RPJ Partner