EEOC Litigation Review – 2025

F. 3d 908, 915 (7th Cir. 2010), from claimant’s allegations. In Chaney , it held that an employer’s policy of honoring residents’ racial preferences in assigning caregivers was grounds for a hostile work environment claim. Notably, however, the employer in Chaney did not deny that it maintained a policy of fulfilling patients’ racial preferences.” Id. at *7. The Seventh Circuit then concluded that this case “therefore must be distinguished from Chaney ,” for a variety of fact-specific reasons each unique to each claimant. Id. Although the Seventh Circuit did not explicitly overrule Chaney , it took stock of three decisions from another federal circuit reaching the opposite conclusion. Specifically, it noted the Fifth Circuit’s decision in Cain v. Blackwell , 246 F. 3d 758, 759 (5th Cir. 2001), that affirmed a grant of summary judgment on hostile work environment claims based on sexual harassment directed at a home caregiver by a patient. Similar rulings were reached in EEOC v. Nexion Health at Broadway, Inc. , 199 F. App’x 351, 352 (5th Cir. 2006), and Gardner, et al. v. CLC Of Pascagoula, LLC , 915 F. 3d 320, 326 (5th Cir. 2019). The Seventh Circuit explained that the Fifth Circuit case law does not create a categorical bar on hostile work environment claims arising from harassment by patients, but rather, “whether a reasonable health care worker in such an environment would consider the patient’s behavior to have made the work hostile or abrasive, taking into consideration the special circumstances necessarily involved with caring for patients with these afflictions.” Village At Hamilton Pointe LLC, 2024 WL 2074326, at *7-8. Although not explicitly stated, the Seventh Circuit seemed to favorably endorse the Fifth Circuit’s reasoning going forward. Given these background principles, the Seventh Circuit did not find that the claims here (such as the use of racial epithets and racial preferences by patients) rose to the level of severe or pervasive conduct to warrant hostile work environment liability. Accordingly, it affirmed the district court’s grant of summary judgment. The Sixth Circuit also issued a decision concerning the EEOC’s subpoena authority, and corresponding service requirements, as well as the rights of defendant employers to object to the size and scope of the EEOC’s subpoena and information requests. In EEOC v. Ferrellgas LP , 2024 U.S. App. LEXIS 7121 (6th Cir. Mar. 26, 2024), April Wells, a Black woman, was a driver for a propane distribution company. In a charge of discrimination filed with the EEOC, Wells alleged that she was subjected to sex discrimination based on: (i) her over qualification for the position for which she was hired as compared to that for which she applied; (ii) her compensation that was allegedly lower than that of her male counterparts; and (iii) her termination. The EEOC began its investigation of Wells’ claims by sending the company two requests for information (RFIs). The employer refused to fully respond to the RFIs on grounds that the scope was overbroad. The EEOC subsequently issued a subpoena for information regarding the company’s hiring practices. The company objected that the subpoena was unsigned, overly broad, unduly burdensome, and not relevant to the matters arising from the charge. A month later, the EEOC sent a second subpoena, in response to which the employer reiterated its objections. In December 2022, the EEOC applied for an order to show cause as to why the subpoena should not be enforced, which was granted with a deadline of February 24, 2023. The company responded that: (i) the EEOC improperly served the subpoena on the wrong corporate entity and therefore the company had not forfeited its right to challenge the subpoena; (ii) the EEOC could not show the relevance of its subpoena; and (iii) gathering and producing the information sought would be “unduly burdensome.” Id. at *17. The district court rejected each of the company’s arguments, and it subsequently appealed. On appeal, the Sixth Circuit affirmed. On appeal, the employer raised a new issue of improper service, claiming that the EEOC was required to mail the subpoena to the company itself or utilize another method enumerated in the National Labor Relations Act (NLRA), as the EEOC is authorized to do under Title VII. The Sixth Circuit found that, after directing the EEOC to communicate with its defense counsel, the company could not defeat service via its outside counsel that complied with its own request and that the company’s strict interpretation of the NLRA was erroneously narrow. In response to the company’s argument that the EEOC’s addressing its subpoena to the wrong corporate entity rendered the subpoena invalid, the Sixth Circuit ruled that such an error did not prevent the employer from raising its objections sooner and that the error was harmless, and therefore did not “preclude the district court from enforcing the subpoena.” Id. at *13. At the same time, the Sixth Circuit rejected the EEOC’s argument that the employer had forfeited the right to object to the subpoena because of the company’s allegations the “the EEOC … failed to properly serve a facially valid subpoena.” Id. at *15. Therefore, the court addressed the company’s substantive objections. The Sixth Circuit reasoned that the district court did not “abuse its discretion in rejecting” the employer’s arguments that the subpoena was “overbroad and unduly burdensome.” Id. The Sixth Circuit explained that Wells’ charge of discrimination did in fact concern hiring practices given her allegations related to discriminatory remarks in the interview process and that, even if the charge did not directly concern hiring practices, information about hiring processes “could cast light on whether [the employer] discriminated against other job applicants.” Id. Finally, the Sixth Circuit agreed with the district

EEOC Litigation Review - 2025

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