We noted in our blog of May 16th that although fiscal year 2011 saw a record number of charges filed with the EEOC, there were no charges filed in either New York or New Jersey under the Genetic Information Nondiscrimination Act ("GINA").

We can now report of an interesting decision dealing with the EEOC’s subpoena power just released by a federal judge in Kentucky in a GINA case. The employee, who has an unidentified medical condition, filed a charge with the EEOC that the employer violated the ADA, and also checked off the box on the charge form indicating that the employer also violated GINA – although he did not say how.

The EEOC, while conducting its investigation into this charge, served a far-reaching subpoena upon the employer, seeking information which appeared to delve into systemic, company-wide practices and policies regarding ADA and GINA, such as, for example, all company-wide medical examinations and all doctors who worked for the employer.

The employer sought to block the subpoena, and an employer trade group filed a brief in support claiming that the EEOC was abusing its subpoena authority by serving an “absurdly broad subpoena” which amounted to a "fishing expedition."

The Court agreed: “While the Court recognizes that it is important for the EEOC to have the ability to investigate possible patterns of discriminatory action, this does not mean that every charge of discrimination justifies an investigation of the employer’s facility-wide employment practices. To conclude otherwise would eviscerate the relevance requirement and condone fishing expeditions, against which the Sixth Circuit has warned.”