Dive Brief:
- Northwestern Mutual must comply with a subpoena issued by the U.S. Equal Employment Opportunity Commission requesting information about the company’s diversity, equity and inclusion programs as part of a discrimination probe, a Wisconsin federal judge held Monday.
- EEOC announced that it had filed an enforcement action against Northwestern Mutual last November. The commission said it received a discrimination charge from an employee alleging that the company’s DEI policies adopted mandatory performance metrics to promote women and people of color. The employee, a White male, claimed Northwestern Mutual unlawfully failed to promote him as a result of its DEI policies.
- Northwestern Mutual argued that EEOC’s subpoena exceeded the agency’s authority in part because both the underlying charge and EEOC’s notice lacked detail necessary to support an investigation of alleged discrimination. It also claimed that several of EEOC’s requests were overbroad and too indefinite. Neither argument served as a sufficient basis for declining to enforce the subpoena, the judge concluded.
Dive Insight:
The case is just one of several in which EEOC has sought to enforce an administrative subpoena relating to an investigation of employers’ diversity, equity and inclusion programs. The investigations, which picked up under Chair Andrea Lucas, are part of the agency’s broader push to target allegedly discriminatory DEI programs.
Per court documents, EEOC sought 21 categories of information and records from Northwestern Mutual. This included, among other items, personnel files for company executives, department heads and company officers, as well as files related to the company’s affirmative action plans and diversity and inclusion policies. EEOC also asked to interview Northwestern Mutual’s VP of diversity and inclusion.
Northwestern Mutual primarily objected to these requests on grounds that the underlying discrimination charge was not valid and therefore an insufficient basis for an investigation. But the court rejected this argument, noting that EEOC’s “jurisdictional burden is not a heavy one” and that U.S. Supreme Court precedent required the agency to identify only basic pieces of information to show that a charge is valid — all of which the charge against Northwestern Mutual satisfied.
The company also claimed that the subpoena should be rejected because some of the requested records and information were either irrelevant, overbroad, too indefinite or raised privacy concerns. The judge mostly disagreed with Northwestern Mutual’s characterization of the requests, adding that privacy concerns, including those pertaining to employees’ information, are not a basis on which to deny subpoena enforcement.
However, the judge did agree to enter a protective order with the aim of protecting Northwestern Mutual employees’ privacy interests, directing EEOC to share with the charging party only those portions of its files necessary to consult on his specific discrimination claims. “The Court will hold the EEOC and its counsel strictly responsible for any violations,” the judge said.
Northwestern Mutual did not immediately respond to a request for comment.
Attorneys previously told HR Dive that EEOC is likely to succeed in its effort to enforce administrative subpoenas against organizations facing discrimination charges. The judge in this case said as much, writing that “the law heavily favors enforcement” and that courts must not use an enforcement proceeding to test the strength of an underlying charge.
EEOC has sought similar enforcement against other entities, one of the most prominent of which is apparel brand Nike. EEOC asked a Missouri federal district court to enforce a subpoena in an investigation of alleged discrimination by Nike against White employees, job applicants and training program participants. Litigation in the case remains ongoing.
