By Howard M. Wexler

On July 22, 2013, Judge Paul D. Borman of the U.S. District Court for the Eastern District of Michigan upheld Magistrate Judge Mark Randon’s ruling in the case of EEOC v. The WW Group, Inc., d/b/a Weight Watchers (Case No 12-11124 (E.D. Mich. July 22, 2013), limiting the scope of permissible discovery that the EEOC could pursue. Judge Borman held that Magistrate Judge Randon properly ruled that the EEOC could not question Weight Watchers’ witnesses about the company’s policies and practices towards employees as the EEOC’s case only involved a single job applicant.

The lawsuit arose out of a charge of discrimination filed by a pregnant woman who claimed that Weight Watchers discriminated against her based on her sex by refusing to hire her as a group leader while pregnant. Weight Watchers has a goal weight policy that requires anyone applying for a position as a group leader or receptionist to be at “goal weight” when hired. Weight Watchers has a different policy for employees, which makes temporary exceptions to strict adherence to the goal weight policy under certain circumstances, including an employee’s pregnancy. These same exceptions are not made for applicants, who, under Weight Watchers’ policy, must be at goal weight to be hired. The charging party was pregnant when she applied for a group leader position and was several pounds over her goal weight. In the lawsuit, the EEOC neither challenged the legality of the goal weight requirement nor claimed that the policy has a disparate impact on pregnant women. Rather, the EEOC’s only claim is the application of the policy towards the charging party.

In the midst of discovery, Weight Watchers moved for summary judgment on the basis that the EEOC could not establish a prima facie case of discrimination because it is undisputed that the charging party was not objectively qualified to be hired based on the objective goal weight policy. The EEOC argued that Weight Watchers’ motion should be deferred so it could conduct discovery. The EEOC moved to compel discovery, including discovery pertaining to Weight Watchers treatment of pregnant staff/employees under its staff goal weight policy, including whether and under what circumstances Weight Watchers makes exceptions to its policy for pregnant women. The EEOC argued that such information regarding employees is relevant to Weight Watchers’ claim that the charging party was not qualified for employment at the time she applied for the group leader position because she was over her goal weight and because it pertains to whether Weight Watchers’ defense is “mere pretext to hide the bad actor’s decision” to not hire the charging party because she was pregnant.

Magistrate Judge Randon denied the EEOC’s request to conduct discovery regarding the application of the goal weight policy to employees as Weight Watchers’ treatment of its pregnant employees is not relevant to the EEOC’s complaint allegations. In affirming Judge Randon’s ruling on the EEOC’s Rule 72 objections, Judge Borman held that “since [the Charging Party] was never a WW employee, and therefore never subject to the staff goal weight policy, and because the EEOC is not challenging the goal weight policy itself, nor its impact on pregnant women as a group, Magistrate Judge Randon appropriately denied the EEOC’s Rule 56(d) motion to conduct discovery into WW’s treatment of its employees under the staff goal policy.”

Discovery disputes are often hotly contested matters. Motions to compel can be particularly vital because one answer has the ability to open up a large can of worms that could transform a “simple” single plaintiff lawsuit into a “bet the company” case. Here, having decided not to challenge the legality of Weight Watchers’ goal weight policy and whether it has a disparate impact on pregnant women, Judges Randon and Borman refused to allow the EEOC to “have its cake and eat it to” and obtain discovery as if it had brought such a disparate impact lawsuit.  Instead, the Court limited the EEOC to discovery regarding only those individuals “similarly situated” to the charging party, namely, other job applicants, not employees.

Given the EEOC’s tendency to seek overly broad and unduly burdensome information during the course of discovery, decisions such as this one demonstrate that employers can (and should) push back on such requests as courts are increasingly warning the EEOC that using discovery as a tool to create ongoing and unnecessary burdens is unacceptable – as previously reported here and here.

Readers can also find this post on our Workplace Class Action blog here.