Filed: July 24, 2012 

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1759

(1:10-cv-03472-RDB)

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Petitioner - Appellant,

v.

RANDSTAD; RANDSTAD NORTH AMERICAN LP; RANDSTAD GENERAL 

PARTNERS (US); RANDSTAD US LP; RANDSTAD INHOUSE SERVICES LP,

Respondents - Appellees.

O R D E R

The Court amends its opinion filed July 18, 2012, as 

follows:

On page 7, item (1) of the numbered list -- the word 

“DOCUMENTS” in upper case is corrected to read “Documents.” 

For the Court – By Direction

/s/ Patricia S. Connor

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION,

Petitioner-Appellant,

v.  No. 11-1759 RANDSTAD; RANDSTAD NORTH

AMERICAN LP; RANDSTAD GENERAL

PARTNERS (US); RANDSTAD US LP;

RANDSTAD INHOUSE SERVICES LP,

Respondents-Appellees. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Richard D. Bennett, District Judge.

(1:10-cv-03472-RDB)

Argued: May 15, 2012

Decided: July 18, 2012

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.
COUNSEL

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.

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.

2 EEOC v. RANDSTAD
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 completed a 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

EEOC v. RANDSTAD 3
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

4 EEOC v. RANDSTAD
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

1The record before us does not disclose the identity of the person who

physically completed the charging documents Morrison filed with the

EEOC v. RANDSTAD 5
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 RandEEOC. We think it is reasonably inferable (as our colloquy with counsel

at oral argument indicated) that an EEOC staffer completed the typed

forms. 

2

In September 2009 the EEOC had issued a letter finding Randstad in

violation of the ADA, but revoked that determination and reopened the

investigation the next month. 

6 EEOC v. RANDSTAD
stad’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 assigned, at Good Humor, Lenox, and the two other

temporary warehouse positions in September 2005, but otherwise refused to comply. 

Thus, the EEOC filed the instant petition for enforcement

of the disputed portion of the subpoena ("the requested information") namely:

(1) Documents or a data compilation setting

forth all non-administrative position assignments made by Randstad’s thirteen Maryland

offices from 2005 through 2009, including

position title, client name, and the date the

assignment was filled;3

(2) Copies of job orders and job descriptions for

each position; 

(3) Copies of all applications for each position; and

(4) A statement for each position as to whether

3

In fact the subpoena also requested information on administrative positions, for which Morrison was concededly unqualified even absent a literacy requirement. On appeal the EEOC has abandoned that request.

Accordingly, for our purposes we consider the EEOC’s request as limited

to non-administrative positions. 

EEOC v. RANDSTAD 7
reading and writing was required for the position.

The EEOC’s petition for enforcement asserted that both

Title VII and the ADA, combined with Morrison’s original

and amended charges of discrimination, authorized it to

obtain the information and documents sought under the subpoena. Title VII authorized the investigation, the Commission

asserted, because Randstad’s literacy requirement "may have

a disparate impact on Jamaicans and others who are not fluent

in English due to their national origin." J.A. 15. In addition,

the Commission asserted, because Morrison’s illiteracy

resulted in part from a learning disability, and because

"[d]iscrimination based on ability to read may constitute a

violation of the ADA," J.A. 16, the subpoena was also authorized by the ADA. The Commission argued that information

about all of Randstad’s positions in Maryland was relevant

because if (contrary to Randstad’s representation) some Randstad positions do not actually require reading skills, the fact

that Randstad nevertheless hires only people who can read

could be evidence of discrimination. Such evidence could also

"uncover the existence of other individuals who have been

harmed by Randstad’s literacy policy." J.A. 19. 

The district court ordered Randstad to show cause why the

subpoena should not be enforced pursuant to Title VII and/or

the ADA. In its answer, Randstad first argued that Morrison’s

charges of discrimination did not authorize the investigation

because although Randstad generally does not give assignments to people who cannot read, that is not because the company discriminates against foreign-born or learning-disabled

individuals, but rather because reading "is an implicit requirement for virtually every light industrial client assignment."

J.A. 66-67. While Randstad "has never maintained a policy

against hiring individuals who cannot read and write," it

argued, it "typically has no work for talent who lack remedial

reading skills." J.A. 67. Randstad’s human resources manager

asserted that it sometimes fills positions that "involve purely

8 EEOC v. RANDSTAD
manual labor where reading may not be required," but such

positions are "rare," "are not a focus of Randstad’s business,"

and "would ordinarily not be in a factory or warehouse setting." J.A. 89. 

Second, Randstad argued that, to the extent the EEOC

relies on the ADA, Morrison’s amended charge was "untimely on its face" because it alleged a "new theory of recovery" and therefore did not relate back to the date of his

original charge. J.A. 78. Third, Randstad argued that, even if

one or both of Morrison’s charges were timely, information

on positions other than the ones to which Morrison was

assigned was not "relevant" because Morrison did not allege

"systemic discrimination or that Randstad’s policies have a

disparate impact" on a "protected class." J.A. 79. Fourth,

Randstad argued, even if some of the requested information

was relevant, the subpoena should not be enforced because

complying with the subpoena would be unduly burdensome.

Its Maryland branches made over 100,000 temporary assignments during the time period of the subpoena. Due to the

structure of Randstad’s databases, compiling the requested

information would require a database administrator, IT developer, and business analyst each to spend 40 hours reviewing

100,000 job orders, at a labor cost of $14,000 to $19,000. 

The EEOC argued it had jurisdiction to investigate under

both Title VII and the ADA because Morrison’s original

charge remained in effect and the amended charge’s allegation of disability discrimination "flow[s] from the national

origin discrimination because they are both the result of the

same literacy requirement." J.A. 115. It argued the full scope

of the materials sought were relevant because "Respondent’s

refusal to assign Morrison based on his inability to read and

write may not be an isolated incident, but rather may be an

instance of a larger discriminatory practice of turning away

illiterate individuals when there is available work within their

skill sets." J.A. 111. Moreover, the EEOC argued, Randstad’s

position that it "typically has no work for talent who lack

EEOC v. RANDSTAD 9
remedial reading skills," J.A. 67, was belied by the fact that

Morrison himself was placed in several positions. Finally, it

argued, there was no undue burden because Randstad’s cost

estimate could not have been correct (if it were, it would

mean the three employees preparing the materials would

receive annual salaries of nearly $330,000), and in any event

a showing that "production will tie-up three employees for a

week . . . do[es] not rise to the level of establishing undue burden." J.A. 117. 

B.

At a hearing on the Commission’s petition, the EEOC reiterated its position that there were two independent bases for

the Commission’s authority to issue the subpoena: Title VII

and the ADA. With respect to Title VII, Morrison’s original

charge alleged that Randstad’s literacy requirement discriminated on the basis of national origin. The Commission

explained that the information requested was relevant to

alleged national origin discrimination because "a reading

requirement is going to have a disparate impact on people of

varying national origin." J.A. 131. Citing a Department of

Education study, the Commission explained, "[O]f the people

who read at the lowest levels, twenty-six percent of them are

people who are learning English currently, so there is a broad

overlap between people who are unable to read and people

who have a unique national origin." J.A. 133. 

The second basis of authority for the subpoena, the Commission argued, was the ADA, arising out of Morrison’s

amended charge, which alleged that the literacy requirement

discriminated on the basis of disability. The Commission recognized that if the amended charge had been filed as a standalone charge, it would have been untimely. The Commission

argued that the amended charge related back to the original

charge, however, because the disability discrimination claim

arises out of the same factual allegations raised in the original

charge, and the amended charge merely altered the statute

10 EEOC v. RANDSTAD
under which "the alleged discrimination constitutes an unlawful employment practice." J.A. 122.

The district court denied the EEOC’s petition to enforce the

subpoena. See EEOC v. Randstad, 765 F. Supp. 2d 734, 742

(D. Md. 2011). As for Title VII, the district court rejected on

relevance grounds Morrison’s national origin discrimination

claim as a basis for enforcing the subpoena.4 That is, assuming Morrison’s original charge triggered Title VII as a basis

for the EEOC’s authority to investigate, the court disagreed

with the Commission’s alleged factual nexus between

national origin discrimination and literacy requirements.

Information related to reading and writing requirements for

particular positions "relates to the matter of reading and writing ability, not national origin," the court stated. J.A. 132. In

particular, the court expressed skepticism about the causal

link between Morrison’s Jamaican origin and his illiteracy: 

Jamaica is an English speaking island. It’s not Haiti

. . . . I’m not really sure where you make the jump

from a national origin claim of discrimination to the

matter of literacy in English, particularly from a

country that, in fact, does have English as its basic

native language. Clearly there is what is known as

Patois spoken by other members of the community

there, sometimes those with lesser education. But

English is clearly spoken in Kingston and in Montego Bay. English is the spoken language in Jamaica.

J.A. 134. Thus, the court apparently concluded, none of the

information requested in the subpoena would be relevant to

Morrison’s charge of national origin discrimination. 

As for the ADA, the district court rejected the Commission’s relation-back argument, reasoning that when the

4The district court’s analysis under Title VII is revealed only in the transcript of the hearing. The written opinion addresses only the ADA. 

EEOC v. RANDSTAD 11
amended charge added the ADA claim, "a new theory of

recovery" was put forward and "an amendment to an EEOC

charge alleging a new theory of recovery does not relate back

to the original charge." Randstad, 765 F. Supp. 2d at 740 (citing Evans v. Tech. Applications & Serv. Co., 80 F.3d 954, 963

(4th Cir. 1996)). Thus, the court concluded it did not have

jurisdiction to enforce the subpoena under the ADA.

The court also offered two alternative grounds for declining

to enforce the subpoena under the ADA. First, the court found

that even if it had jurisdiction under the ADA, any information beyond that which Randstad had already produced was

irrelevant to Morrison’s charge of disability discrimination by

Randstad’s Hagerstown office. The court ruled that because

the subpoena requested information about all Randstad positions (including administrative positions, for which Morrison

was concededly unqualified), for all Maryland offices (even

though Morrison solely sought employment by Randstad in

its Hagerstown office), and for a five-year period after Morrison’s termination (even though Morrison was employed by

Randstad only from August 2005 until September 2006), the

information requested was beyond the scope permitted by the

amended charge. Id. at 741-42. Second, the court ruled that,

even if it had jurisdiction under the ADA or Title VII, and

even if the requested materials were relevant, the cost of compliance with the subpoena—$14,000 to $19,000 according to

Randstad—rendered the requests unduly burdensome. Id. at

742. 

The EEOC sought reconsideration, which the district court

denied, and then timely appealed.

II.

Title VII proscribes discriminatory employment practices

on the basis of, among other things, national origin. 42 U.S.C.

§ 2000e-2. The ADA proscribes discriminatory employment

practices based on disability, including an employer’s failure

12 EEOC v. RANDSTAD
to provide a reasonable accommodation. 42 U.S.C.

§ 12112(a), (b)(5)(A). Each statute authorizes the EEOC to

investigate instances of discrimination, but only if a charge of

discrimination has been made with respect to a particular person or entity. 42 U.S.C. § 2000e-5(b); 42 U.S.C. § 12117(a).

If a charge of discrimination triggers the EEOC’s authority

to investigate under Title VII or the ADA, the EEOC may

access "any evidence . . . that relates to unlawful employment

practices covered by [the statute] and is relevant to the charge

under investigation." 42 U.S.C. § 2000e-8(a); see also 29

U.S.C. § 161 (describing the investigatory powers of the

National Labor Relations Board, which the EEOC also may

exercise pursuant to Title VII, see 42 U.S.C. § 2000e-9, and

the ADA, see 42 U.S.C. § 12117(a)). If a respondent does not

comply voluntarily with requests for such evidence, the

EEOC may issue an administrative subpoena, 29 U.S.C.

§ 161(a), and may petition for enforcement in federal district

court. Id. § 161(2); see also EEOC v. Shell Oil Co., 466 U.S.

54, 65 (1984) (explaining that the existence of a charge of discrimination relevant to material being sought through an

administrative subpoena is a jurisdictional prerequisite to the

enforcement of the subpoena). 

A district court’s role in enforcing administrative subpoenas is "sharply limited." EEOC v. City of Norfolk Police

Dep’t, 45 F.3d 80, 82 (4th Cir. 1995). To obtain judicial

enforcement of a subpoena, the EEOC need demonstrate only

that "(1) it is authorized to make such investigation; (2) it has

complied with statutory requirements of due process; and (3)

the materials requested are relevant." Id. The process of

reviewing an administrative subpoena for judicial enforcement "is not one for a determination of the underlying claim

on its merits; Congress has delegated that function to the discretion of the administrative agency." EEOC v. Am. & Efird

Mills, Inc., 964 F.2d 300, 303 (4th Cir. 1992). To establish its

authority to investigate, the EEOC need only present an "arguable" basis for jurisdiction. Norfolk Police Dep’t, 45 F.3d

EEOC v. RANDSTAD 13
at 85. As long as jurisdiction is "plausible" and not "plainly

lacking," EEOC v. Fed. Exp. Corp., 558 F.3d 842, 848 (9th

Cir. 2009), the subpoena should be enforced, unless the party

being investigated demonstrates that the subpoena is unduly

burdensome. EEOC v. Maryland Cup Corp., 785 F.2d 471,

476 (4th Cir. 1986). 

We review the factual findings underlying a district court’s

enforcement determination of an administrative subpoena for

clear error and its legal conclusions de novo. Solis v. Food

Emp’rs Labor Relations Ass’n, 644 F.3d 221, 226 (4th Cir.

2011). The district court’s ultimate decision whether and to

what extent to enforce a subpoena is reviewed for abuse of

discretion. NLRB v. Carolina Food Processors, Inc., 81 F.3d

507, 510 (4th Cir. 1996). 

We first explain why, contrary to the district court’s conclusion, the EEOC had authority to investigate Morrison’s

charges under both the ADA and Title VII. We then explain

why the requested materials were within the scope of the

Commission’s investigatory authority. The applicable legal

standards thus clarified, we conclude that the Commission is

entitled to an order enforcing its subpoena. 

A.

We first address whether the EEOC had authority to seek

enforcement of the subpoena under the ADA and/or under

Title VII. This requires that we decide (1) whether the

amended charge alleging an ADA violation relates back to the

date the original charge was filed, and (2) whether the original

charge alleging a Title VII violation continued to trigger the

EEOC’s investigatory authority even after the amended

charge was filed.

1.

As explained above, Morrison’s amended charge, filed on

January 30, 2009, alleged that Randstad discriminated against

14 EEOC v. RANDSTAD
him by refusing to accommodate his alleged learning disability, and thereby violated the ADA. As an original charge, the

ADA charge clearly would have been untimely. The question

on appeal is whether the amended charge, which alleged the

same facts as the original charge (refusal to give him temporary employment because he could not read) but asserted that

those facts violated a different statute (the ADA instead of

Title VII) relates back to January 5, 2007, the filing date of

the original charge.

EEOC regulations provide that an amended charge will

relate back to "the date the charge was first received" if the

amendment (1) "cure[s] technical defects or omissions,

including failure to verify the charge," (2) "clarif[ies] and

amplif[ies] allegations made therein," or (3) "alleg[es] additional acts which constitute unlawful employment practices

related to or growing out of the subject matter of the original

charge." 29 C.F.R. § 1601.12(b).5

 As noted, the factual allegations in Morrison’s two charges were identical: that Randstad

denied him placement because it maintains a policy of not hiring people who cannot read. Morrison originally alleged that

the literacy requirement was discriminatory because it

imposed unwarranted disadvantages on people who, like him,

were from another country. In his amended charge, he alleged

that the same literacy requirement, which led to the same

adverse employment decision, was discriminatory for a different reason: it disadvantaged people who, like him (he had

later learned), have a learning disability. 

5

In full the regulation reads: 

A charge may be amended to cure technical defects or omissions,

including failure to verify the charge, or to clarify and amplify

allegations made therein. Such amendments and amendments

alleging additional acts which constitute unlawful employment

practices related to or growing out of the subject matter of the

original charge will relate back to the date the charge was first

received. 

29 C.F.R. § 1601.12(b). 

EEOC v. RANDSTAD 15
The Commission argues Morrison’s amended charge

"merely clarifie[d] that there is another possible explanation

for the employment action referenced in the original charge:

disability discrimination." Appellant’s Br. at 26. The Commission argues that Morrison’s amended charge relates back

under the "clarify and amplify" prong of § 1601.12(b) because

(1) § 1601.12(b) is a reasonable exercise of the EEOC’s

authority under the ADA and entitled to deference, and (2) its

interpretation of § 1601.12(b) as applying to Morrison’s

amendment is also reasonable and entitled to deference. We

agree. 

Congress has expressly delegated to the EEOC the authority to promulgate "suitable procedural regulations to carry out

the provisions of" Title VII and the ADA. 42 U.S.C. § 2000e12(a). Section 1601.12(b) is a reasonable exercise of that

authority. Indeed, Randstad does not argue § 1601.12(b)

exceeded the EEOC’s authority, and for good reason. We

have recognized the "wide discretion" Congress granted the

EEOC to promulgate procedural regulations governing discrimination charges. EEOC v. Bethlehem Steel Corp., 765

F.2d 427, 429 (4th Cir. 1985). In Edelman v. Lynchburg College, 535 U.S. 106 (2002), the Court unanimously upheld a

different aspect of 29 C.F.R. § 1601.12(b) as a reasonable

exercise of the EEOC’s authority under 42 U.S.C. § 2000e12(a).6

 As Justice O’Connor observed in addressing yet

another aspect of the EEOC’s administrative processes, defer6

In Edelman the Court considered § 1601.12(b)’s pronouncement that

although a charge of discrimination must be "under oath or affirmation,"

42 U.S.C. § 2000e-5(b), such verification constitutes an "amend[ment] to

cure technical defects or omissions" and therefore relates back to the date

an original, unverified charge was filed. 29 C.F.R. § 1601.12(b). The

majority upheld that interpretation, and indeed considered it "not only a

reasonable one, but the position we would adopt even if there were no formal rule and we were interpreting the statute from scratch." 535 U.S. at

114. The other justices also agreed the EEOC’s interpretation was a reasonable exercise of the EEOC’s authority. See id. at 119 (Thomas, J., concurring); id. at 121 (O’Connor, J., concurring in the judgment). 

16 EEOC v. RANDSTAD
ence to the EEOC is "particularly appropriate" when it comes

to EEOC regulations involving a "technical issue of agency

procedure." EEOC v. Commercial Office Prods., 486 U.S.

107, 125 (1988) (O’Connor, J., concurring). Just as the Edelman Court upheld the EEOC’s interpretation of Title VII as

permitting relation back of a verified charge to the filing date

of a prior unverified charge, we hold that the EEOC acted reasonably in interpreting the ADA as permitting relation back

of a charge that "clarif[ies] and amplif[ies] allegations" made

in a prior charge.

We also find reasonable the EEOC’s interpretation of

§ 1601.12(b) as permitting relation back of the amended

charge here. As noted, § 1601.12(b) permits an amended

charge to relate back if it "clarif[ies] and amplif[ies] allegations made" in a prior timely charge. In arguing that Morrison’s amended charge relates back, the EEOC interprets the

phrase "clarif[ies] and amplif[ies] allegations" as encompassing amended charges in which, as here, the charging party

makes no new factual allegations but rather solely revises his

or her charge to allege that the same facts constitute a violation of a different statute. An agency’s interpretation of its

own regulations is "controlling unless plainly erroneous or

inconsistent with the regulation." Auer v. Robbins, 519 U.S.

452, 461 (1997) (internal quotation marks omitted); cf. Bethlehem Steel, 765 F.2d at 429 (upholding EEOC’s interpretation of charge-filing regulation because the interpretation was

"reasonable"). 

The EEOC’s interpretation is not inconsistent with

§ 1601.12(b), and we see no reason to find it "plainly erroneous." Charge-filing time limits serve "to encourage a potential

charging party to raise a discrimination claim before it gets

stale, for the sake of a reliable result and a speedy end to any

illegal practice that proves out," Edelman, 535 U.S. at 112-13,

and to "protect employers from the burden of defending

claims arising from employment decisions that are long past,"

Delaware State Coll. v. Ricks, 449 U.S. 250, 256-57 (1980).

EEOC v. RANDSTAD 17
Interpreting § 1601.12(b) as applying to amended charges that

alter solely the statutory basis or legal theory of recovery is

entirely consistent with these purposes. Morrison’s amendment did not assert a "stale" claim because it did not allege

any discriminatory incidents other than those already included

in the original charge. Rather, it asserted that the same

adverse employment action was at least in part the product of

a different type of discrimination: disability discrimination.

Relating back the ADA charge to the date of the original

charge does not require Randstad to defend against a "stale"

claim arising from an employment decision that is "long

past." Moreover, there is "no reason to suspect that the interpretation does not reflect the agency’s fair and considered

judgment on the matter," and the Commission’s position is

not a "post hoc rationalization" advanced simply to "defend

past agency action against attack." Auer, 519 U.S. at 462. This

is also not a situation where "the underlying regulation does

little more than restate the terms of the statute itself," in which

case Auer deference would be unwarranted. Gonzales v. Oregon, 546 U.S. 243, 257 (2006). 

For these reasons, we defer to the EEOC’s promulgation of

§ 1601.12(b) and its interpretation thereof. Accord Washington v. Kroger, 671 F.2d 1072, 1075-76 (8th Cir. 1982) (holding that, based on an earlier version of § 1601.12(b), an

amended charge relates back where it alleges the same facts

as the original charge even though the "nature of discrimination alleged" is different) (citing 29 C.F.R. § 1601.11(b)

(1973)); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 464

(5th Cir. 1970) (also citing the precursor to § 1601.12(b), and

allowing a national origin discrimination charge to relate back

to the date of a prior sex discrimination charge because "a

charging party’s failure to attach the correct legal conclusion

to the factual allegations contained in a charge of discrimination is a mere technical defect"); see also id. at 462 ("The

selection of the type of discrimination alleged, i.e., the selection of which box to check, is in reality nothing more than the

attachment of a legal conclusion to the facts alleged. In the

18 EEOC v. RANDSTAD
context of a statute like Title VII it is inconceivable that a

charging party’s rights should be cut off merely because he

fails to articulate correctly the legal conclusion emanating

from his factual allegations.").7

As noted above, the district court relied on Evans, 80 F.3d

at 963, for the proposition that "an amendment to an EEOC

charge alleging a new theory of recovery does not relate back

to the original charge." Randstad, 765 F. Supp. 2d at 740.

That reliance was misplaced. First, Evans was a case deciding

the merits of a discrimination claim at the summary judgment

stage, whereas this case presents a proceeding to enforce an

administrative subpoena. Because the strength of the nexus

between factual allegations in an original charge and a theory

of recovery requires some degree of inquiry into the merits,

and because the EEOC has presented a plausible nexus here,

Evans is of limited authority for refusing to enforce the

EEOC’s subpoena. Second, in Evans, the plaintiff filed her

private lawsuit very shortly after amending her charge, which

prevented the local agency from investigating her allegation

of age discrimination. A crucial reason we rejected the plaintiff’s relation-back argument in Evans was because permitting

relation back in those circumstances "depriv[ed] the employer

of adequate notice and result[ed] in a failure to investigate by

the responsible agency." Evans, 80 F.3d at 963. This case

presents the opposite scenario. As the EEOC cogently

explains, "[N]ot only has no private lawsuit been filed, but the

dispute exists because the EEOC is attempting to complete its

investigation of Morrison’s discrimination claims." Appellant’s Br. at 33. Third, although pursuant to the Age Discrimination in Employment Act, the statute at issue in Evans, the

EEOC has determined that a charge alleging a violation of

one statute may be amended to allege "that the alleged dis7The reasoning in Sanchez, quoted in text, seems especially apt in a

case, such as the case before us, in which the basis for the charging party’s

allegation is the alleged discriminatory impact of a facially neutral literacy

policy. 

EEOC v. RANDSTAD 19
crimination constitutes an unlawful employment practice

under another statute administered and enforced by the Commission," 29 C.F.R. § 1626.22(c), it appears § 1626.22(c) was

not brought to the court’s attention in Evans. Thus, Evans has

no bearing on the appropriate level of deference due to the

Commission’s promulgation of § 1601.12(b).

For these reasons, we hold that the amended charge of discrimination relates back to the filing date of the original

charge and that the EEOC had authority under the ADA to

investigate matters relevant to that charge.

2.

The Commission also argues that Title VII, not just the

ADA, authorized it to investigate, and thus its authority

encompassed Morrison’s claim that Randstad discriminated

against him on the basis of national origin.8 As explained

above, the original charge, which Randstad concedes was

timely filed, alleged that Morrison was terminated because he

is Jamaican. The amended charge alleged only that the termination was the result of disability discrimination; it omitted

the allegation of national origin discrimination and replaced

the checkmark for "national origin" discrimination with a

checkmark for "disability" discrimination. The EEOC argues

this omission is immaterial because the original charge was

never "resolved or dismissed" and therefore "continues to

8Randstad argues the Commission forfeited this argument in the district

court, but we disagree. At the hearing on the petition for enforcement, the

Commission clearly contended that both asserted bases of authority were

valid and independent, and that the ADA relation-back theory was only

"one method by which the EEOC would have jurisdiction." J.A. 130; see

also id. ("[E]ven if we discarded the ADA charge, . . . nothing’s been done

to supplant or remove the original Title VII charge."); J.A. 136 (explaining

that as to Title VII, "he’s new to this country, his English is not very good,

that’s why he can’t read and that’s why he was run out by Randstad. The

other amended charge is ADA because it turns out that he does have a disability."). 

20 EEOC v. RANDSTAD
serve as a jurisdictional basis for the subpoena." Appellant’s

Br. at 20. As above, the EEOC’s argument turns on the reasonableness of both its regulations and its interpretation thereof.9

Under the EEOC’s charge-filing regulations, a charge may

be resolved in one of five ways: if the EEOC (1) makes a

finding of cause; (2) makes a finding of no cause; (3) dismisses the charge; or if (4) the charging party withdraws the

charge; or if (5) the parties reach a negotiated settlement. The

first three require that the Commission give notice to the parties. See 29 C.F.R. § 1601.21 (finding of cause); id. § 1601.19

(finding of no cause); id. § 1601.18 (dismissal). Similarly, a

withdrawal or settlement requires the consent of the Commission. See id. § 1601.10 (withdrawal of charge); id. § 1601.20

(settlement). The EEOC argues that none of these dispositions

occurred; after all, the Commission never gave notice of a

finding of cause, no cause, or dismissal, and never gave consent to a withdrawal or settlement. Rather, it argues, under 29

C.F.R. § 1601.12(b) the "additional information" in Morrison’s amended charge was "simply incorporated into the original charge," and thus when Morrison amended his charge,

Morrison’s original allegation of national origin discrimination "remained in place." Appellant’s Br. at 22. 

Section 1601.12(b), the same regulation the Commission

relies upon for its ADA relation-back argument, does not

expressly address the scenario here. It provides in pertinent

part that "[a] charge may be amended to cure technical defects

or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein." 29 C.F.R.

§ 1601.12. The EEOC regulation that governs the withdrawal

9The district court appears to have assumed without deciding that the

amended charge supplemented rather than replaced the original charge.

Nevertheless, it rejected the EEOC’s effort to enforce the subpoena under

Title VII because it concluded the requested materials were irrelevant to

the charge of national origin discrimination. We explain infra why the relevance determination was erroneous, but explain here why the EEOC did

have authority under Title VII. 

EEOC v. RANDSTAD 21
of charges also does not address whether a charging party

who files an amended charge that omits a previously asserted

legal theory has "withdrawn" that portion of the original

charge. See 29 C.F.R. § 1601.10 ("A charge filed by or on

behalf of a person claiming to be aggrieved may be withdrawn only by the person claiming to be aggrieved and only

with the consent of the Commission."). 

We find the phrase "[a] charge may be amended . . . to clarify and amplify allegations made therein," 29 C.F.R.

§ 1601.12(b), to be ambiguous as applied to the scenario here:

it is consistent with, but does not necessarily require, the conclusion that the original charge remained in effect even after

the amended charge sought to "clarify and amplify" the original charge. Thus, the dispositive question again becomes

whether the EEOC’s interpretation of § 1601.12(b) is "plainly

erroneous," Auer, 519 U.S. at 461. We easily conclude it is

not. Morrison’s original charge put Randstad on notice that

the EEOC might investigate his allegations of national origin

discrimination. See Sydnor v. Fairfax Cty., Va., 681 F.3d 591,

593 (4th Cir. 2012) (explaining that "requiring a party to file

a charge with the EEOC ensures that the employer is put on

notice of the alleged violations . . . [and] places the resolution

of employment discrimination disputes initially in the hands

of the EEOC") (internal quotation and citation omitted)).

Although upon receiving notice of the amended charge Randstad may have assumed the EEOC’s investigation would

focus instead on the allegation of disability discrimination,

any minimal prejudice (which is all but non-existent) Randstad may have perceived does not render the EEOC’s interpretation of § 1601.12(b) plainly erroneous. The charge-filing

procedure "should not become a tripwire for hapless plaintiffs." Sydnor, 681 F.3d at 594.

For these reasons, the original charge triggered the EEOC’s

investigatory authority under Title VII, and the amended

charge (timely-filed because it related back) triggered its

authority under the ADA. Accordingly, the EEOC had juris22 EEOC v. RANDSTAD
diction under both statutes to issue and seek enforcement of

the administrative subpoena. 

B.

Once the EEOC has authority to investigate a particular

charge of discrimination, it may access "any evidence of any

person being investigated or proceeded against that relates to

unlawful employment practices covered by this subchapter

and is relevant to the charge under investigation." 42 U.S.C.

§ 2000e-8(a) (emphasis added); see also 42 U.S.C. § 12117(a)

(incorporating 42 U.S.C. § 2000e-8 into the ADA by reference). The "relevant to the charge" requirement contrasts the

EEOC’s investigatory authority from that of "other federal

agencies that possess plenary authority to demand to see

records relevant to matters within their jurisdiction." Shell

Oil, 466 U.S. at 64. Tellingly, however, a charge of discrimination "is not the equivalent of a complaint initiating a lawsuit." Id. at 68. Rather, it serves "to place the EEOC on notice

that someone (either a party claiming to be aggrieved or a

Commissioner) believes that an employer has violated the

title." Id.

Once a charge has placed the Commission on notice that a

particular employer is (or may be) violating Title VII or the

ADA in a particular way, the Commission may access "virtually any material that might cast light on the allegations

against the employer." Id. at 68-69. This definition of relevance necessarily is broader than "evidentiary relevance"

because in this context "[w]e determine relevancy in terms of

the investigation," EEOC v. Lockheed Martin Corp., Aero &

Naval Systems, 116 F.3d 110, 113 (4th Cir. 1997) (internal

quotation marks omitted), not in terms of litigation of the

merits of the underlying charge. See EEOC v. Konica Minolta

Bus. Solutions U.S.A., Inc., 639 F.3d 366, 369 (7th Cir. 2011)

(analogizing an EEOC investigation to civil discovery under

Fed. R. Civ. P. 26(b)(1), where "[r]elevant," and thereby discoverable, information "need not be admissible at the trial if

EEOC v. RANDSTAD 23
the discovery appears reasonably calculated to lead to the discovery of admissible evidence"). Congress has delegated to

the EEOC the authority to investigate charges of discrimination, and naturally the agency has developed expertise in that

area. In this and other areas, where an agency is tasked with

investigation, we "defer to an agency’s own appraisal of what

is relevant so long as it is not obviously wrong." Lockheed

Martin, 116 F.3d at 113 (citing FTC v. Invention Submission

Corp., 965 F.2d 1086, 1089 (D.C. Cir. 1992)). Accordingly,

although "we must be careful" not to render the relevance

requirement "a nullity," it "is not especially constraining,"

Shell Oil, 466 U.S. at 68-69, precisely because we largely

defer to the EEOC’s expertise.

As noted, the requested materials include information on all

non-administrative positions made by Randstad’s Maryland

offices from 2005 to 2009, including position descriptions and

copies of applications for each position. The question is

whether and to what extent these materials were "relevant" to

the EEOC’s investigation of Morrison’s charges, which

alleged that he had approached only the Hagerstown office for

assignments, and was terminated in September 2006 as the

result of alleged disability and/or national origin discrimination. The district court concluded that none of the requested

materials were relevant. The district court’s application of an

unduly strict standard of relevance amounted to legal error,

leading to an abuse of discretion. Applying the correct standard, with deference to the EEOC’s assessment of relevance,

we conclude that all of the EEOC’s requested materials fall

within the broad definition of relevance applicable to EEOC

administrative subpoenas.

1.

As for Morrison’s charge of national origin discrimination,

the EEOC argues the requested materials are relevant as follows:

24 EEOC v. RANDSTAD
The information requested in items 3 and 4 will

assist the EEOC in determining whether Randstad

imposes a literacy requirement that discriminates on

the basis of national origin. Knowing the types of

non-clerical jobs into which Randstad has placed

individuals since January 2005, the year Morrison

first sought work through Randstad, will assist the

EEOC in ascertaining whether Randstad is correct

when it claims that an ability to read is needed to

perform all of its laborer positions, or whether Randstad has made other placements—like the Good

Humor job Morrison did in September 2005—that

can be performed successfully even without an ability to read. This information, in turn, will help the

EEOC determine whether Randstad’s professed literacy requirement eliminates from consideration individuals who could perform the jobs in question but

are nevertheless excluded simply because they cannot read and write English because their national origin is somewhere other than the United States and

their native language is not English.

Appellant’s Br. at 37-38. This "appraisal of what is relevant

. . . . is not obviously wrong," Lockheed Martin, 116 F.3d at

113, because the requested information "might cast light on

[Morrison’s] allegations" of national origin discrimination,

Shell Oil, 466 U.S. at 69. Accordingly, we defer to the

EEOC’s assessment of relevance. 

The district court rejected the argument that the requested

materials were relevant to Morrison’s charge of national origin discrimination because it disbelieved one premise of the

Commission’s relevance argument, namely, that someone

from Jamaica might be less proficient in English because he

is from Jamaica. That is, the court discerned no factual nexus

between Morrison’s Jamaican origin and his illiteracy, apparently because although some people in Jamaica speak the language Patois, English is also predominant. See J.A. 134

EEOC v. RANDSTAD 25
(observing that although in Jamaica "there is what is known

as Patois spoken by other members of the community there,

sometimes those with lesser education," "English is clearly

spoken in Kingston and in Montego Bay"). 

At the subpoena-enforcement stage, however, "any effort

by the court to assess the likelihood that the Commission

would be able to prove the claims made in the charge would

be reversible error." Shell Oil, 466 U.S. at 72 n.26. The

EEOC’s authority to investigate "is not negated simply

because the party under investigation may have a valid

defense to a later suit." EEOC v. United Air Lines, Inc., 287

F.3d 643, 651 (7th Cir. 2002). Although there may sometimes

be a fine line between, on the one hand, assessing the relevance of requested information to a charging party’s allegations and, on the other hand, "determin[ing] whether the

charge of discrimination is ‘well founded’ or ‘verifiable,’"

Shell Oil, 466 U.S. at 72 n.26, we conclude that the district

court’s rejection of the EEOC’s alleged factual nexus crossed

the line into an assessment of the merits of Morrison’s claim.

The effect of inquiring into the merits was essentially to "require[ ] the EEOC to make a reasonable cause showing as a

prerequisite to enforcement of the [subpoena]." Graniteville

Co. v. EEOC, 438 F.2d 32, 36 (4th Cir. 1971). This served

"not only to place the cart before the horse, but to substitute

a different driver [the district court] for the one appointed by

Congress [the EEOC]." Id.; see also EEOC v. Dillon Cos.,

Inc., 310 F.3d 1271, 1277 (10th Cir. 2002) ("We will not . . .

either encourage or allow an employer to turn a summary

subpoena-enforcement proceeding into a mini-trial by allowing it to interpose defenses that are more properly addressed

at trial."). The EEOC has satisfied the relevancy requirement

as to the Title VII charge.

2.

The EEOC argues the requested materials are also relevant

to the charge of disability discrimination, as it explains:

26 EEOC v. RANDSTAD
Randstad terminated Morrison’s employment

because the company concluded that absent an ability to read—a condition that, in Morrison, may be

the result of an intellectual impairment—Morrison is

unable to perform any job for any Randstad’s customer. The EEOC already possesses information that

undermines Randstad’s claim: Morrison was unable

to read English when he worked for Randstad in

2005, but he nevertheless successfully completed a

monthlong assignment at Good Humor, belying

Randstad’s claim that English literacy skills are necessary for successful performance of all its laborer

positions. The information requested in subpoena

items 3 and 4 is relevant to this investigation because

it will permit the EEOC to determine whether Randstad’s Maryland branches made any other staffing

placements into jobs, like the Good Humor assignment, that a person who lacks English literacy skills

because of a disability could nevertheless perform.

Appellant’s Br. at 39. The district court rejected the EEOC’s

relevance argument because, in the court’s view, the only

materials relevant to the EEOC’s investigation were those

pertaining to the four specific placements to which Morrison

was himself assigned; information on other positions were

beyond the scope of the EEOC’s investigatory authority.10

10Although the district court did not expressly state its reasoning in

those terms, we conclude this must have been the district court’s implicit

premise. The court stated that the requested materials were not relevant to

Morrison’s disability discrimination charge because "Morrison solely

sought employment by Randstad in its Hagerstown office, and was only

employed by Randstad from August 2005 until September 2006." Randstad, 765 F. Supp. 2d at 742. Although it would seem to follow from that

observation that information on position assignments made by the Hagerstown office in 2005-2006 would be relevant to Morrison’s charge, the district court nonetheless concluded that none of the information the EEOC

was seeking was relevant to Morrison’s charge. Id. Therefore, the district

court apparently reasoned that information on position assignments to

which Morrison was not assigned was irrelevant to the EEOC’s investigation. 

EEOC v. RANDSTAD 27
The district court’s analysis does not square with the deferential standard of relevance the Supreme Court applied in Shell

Oil.

As discussed above, during an investigation of a charge that

a particular employer discriminated in a particular way, the

Commission is entitled to access "virtually any material that

might cast light on the allegations." Shell Oil, 466 U.S. at 68-

69. Here, the EEOC has determined that information on positions other than those held by Morrison "might cast light" on

his allegations of disability discrimination because it will

allow the Commission to "test Randstad’s assertion that all of

its warehouse and laborer positions require basic literacy

skills." Appellant’s Br. at 40. If it turns out Randstad’s assertion that all of its positions require literacy is unsupported by

the requested materials, then those materials might turn out to

constitute evidence of unlawful discrimination. Accordingly,

information on at least some positions other than those held

by Morrison is relevant to the EEOC’s investigation.11

This raises the somewhat closer question of whether the

EEOC overstepped in its assessment of how many other nonadministrative position assignments were relevant to its investigation of Morrison’s charge. Although the EEOC originally

requested information for position assignments nationally, it

later narrowed its request to Randstad’s Maryland offices, for

the years 2005 to 2009. Randstad argues in essence that, even

if some position assignments beyond those Morrison held are

relevant, the geographic and temporal scope of the subpoena

goes too far, and we should at minimum limit the subpoena

to position assignments made by the Hagerstown office dur11We recognize that in Shell Oil the charge at issue was a Commissioner’s charge that alleged a pattern or practice of discrimination, see 466

U.S. at 67, and thus the scope of the EEOC’s investigation arguably may

have been broader than the permissible scope of its investigation here. But

that factual distinction does not undercut the Court’s clear instruction to,

in general, defer to the EEOC’s assessment of what materials are relevant

to its investigation. 

28 EEOC v. RANDSTAD
ing the years 2005 and 2006, the years during which Morrison

was temporarily employed by Randstad. We disagree. Again,

we and the district court must defer to the EEOC’s appraisal

of what is relevant so long as it is not obviously wrong. Lockheed Martin, 116 F.3d at 113. We conclude the thirteenoffice, five-year scope of the subpoena was not an unreasonable exercise of the EEOC’s discretion in deciding how to

investigate whether Randstad’s literacy policy was discriminatory. Although Randstad is correct that the EEOC must

have "a realistic expectation rather than an idle hope that

something may be discovered," United Air Lines, 287 F.3d at

653, we do not believe, as Randstad argues, that "the EEOC

has demonstrated nothing more than ‘an idle hope that something may be discovered.’" Appellee’s Br. at 33. For these

reasons, the requested materials are relevant to the EEOC’s

investigation.

C.

The Commission’s showing of relevance does not end the

inquiry. Even if the requested materials are relevant to a

charge of discrimination, Randstad is entitled to attempt to

show that compliance with the subpoena would be "unduly

burdensome." Maryland Cup, 785 F.2d at 477. "The burden

of proving that an administrative subpoena is unduly burdensome is not easily met." Id. "The party subject to the subpoena must show that producing the documents would

seriously disrupt its normal business operations." Id. Although

"[w]hat is unduly burdensome depends on the particular facts

of each case and no hard and fast rule can be applied to

resolve the question," United Air Lines, 287 F.3d at 653, an

important factor is the cost of production "in the light of the

company’s normal operating costs." Maryland Cup, 785 F.2d

at 479.

Here, Randstad’s "evidence" of burdensomeness was limited to an affidavit from its Director of IT Applications representing that gathering the information would take three

EEOC v. RANDSTAD 29
Randstad employees at least 40 hours each, at a total estimated labor cost of $14,000 to $19,000. The district court

seemingly relied on this estimate and found that Randstad had

established that compliance would impose an undue burden.

Randstad, 765 F. Supp. 2d at 742. On appeal, the EEOC

argues the affidavit is insufficient as a matter of law under

Maryland Cup. We agree with the EEOC.

The EEOC subpoena in Maryland Cup requested, among

other things, that the employer provide a list of the race of

former employees. 785 F. 2d at 478. Gathering that information required the company to interview the supervisors and

coworkers of former employees, which Maryland Cup

asserted would cost $75,000 (in 1985 dollars), a cost that

Maryland Cup argued was unduly burdensome. Id. at 479. We

rejected that argument because the employer had failed to

show either that gathering this information was "unduly burdensome in the light of the company’s normal operating

costs," or that gathering the information would "threaten" or

"seriously disrupt" its "normal business operations." Id. at

477, 479. Accordingly, we vacated the district court’s denial

of the EEOC’s petition and instructed the court to enforce the

subpoena ("except insofar as it require[d] the company to

retrieve evidence from persons no longer under its control").

Id. at 479. 

We reach a like conclusion here. Randstad’s affidavit on

burdensomeness asserted only that compiling the requested

information would require three employees to spend 40 hours

each, at a total cost $14,000 to $19,000. Randstad did not

proffer evidence of its "normal operating costs," and the district court made no such findings. Randstad also did not

assert, and the district court did not find, that gathering the

requested information would "threaten" or "seriously disrupt"

Randstad’s business operations. In these circumstances, we

conclude that the evidence proffered by Randstad was insuffi30 EEOC v. RANDSTAD
cient as a matter of law to support a finding that the costs of

compliance rise to the level of an undue burden.12

III.

For the foregoing reasons, we reverse and remand for entry

of an order granting the EEOC’s application for enforcement.

REVERSED AND REMANDED

12As an alternative argument, the EEOC argues the district court committed clear factual error in finding Randstad’s cost estimate to be accurate. See Appellant’s Br. at 42 n.9; see also supra p. 10. Because we find

Randstad’s evidence was insufficient as a matter of law, we need not

decide whether there was clear error in this regard. 

EEOC v. RANDSTAD 31