In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1937

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellee,

v.

UNITED AIR LINES, INCORPORATED,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 0242--George W. Lindberg, Judge.

ARGUED NOVEMBER 29, 2001--DECIDED April 25, 2002



  Before COFFEY, EASTERBROOK and RIPPLE,
Circuit Judges.

  RIPPLE, Circuit Judge. The Equal
Employment Opportunity Commission
("EEOC") brought this action to enforce
an administrative subpoena against United
Air Lines, Inc. ("UAL") in the course of
its investigation into charges of
national origin and sex discrimination
filed by a UAL flight attendant, Maureen
Droge. The district court enforced the
subpoena in its entirety. UAL appealed,
and we now affirm in part and reverse and
remand in part.

I

BACKGROUND

A.   Facts

  Ms. Droge began working for UAL as a
flight attendant in 1990. In 1995, she
requested, and was granted, a temporary
assignment in Paris, France. While
assigned in Paris, Ms. Droge became
pregnant. Because UAL does not allow its
flight attendants to fly during their
third trimester of pregnancy, Ms. Droge
was placed on involuntary leave. At some
point, Ms. Droge apparently applied for
temporary disability benefits through the
French social security system. She was
denied benefits, however, because UAL did
not make contributions to the French
system on behalf of its American flight
attendants.

  On February 8, 1999, Ms. Droge filed a
charge of discrimination, alleging that
UAL had violated Title VII by
discriminating against her and other
Americans on the basis of their national
origin. Specifically, Ms. Droge alleged:

I. I am employed by Respondent in Paris,
France. Respondent does not pay into the
French Social Security system for me and
other Americans employed or domiciled in
France. As a result, Americans are not
compensated for absences from work due to
illness or temporary disability whereas
French employees are.

II. I believe that I and other Americans
have been discriminated against because
of our national origin in violation of
Title VII of the Civil Rights Act of
1964, as amended, in that Respondent does
not contribute to the French Social
[security system], but is permitted to do
so under French law, for Americans
employed or domiciled in France.

R.9, Tab 9, Ex.B.

  In its response to the charge, UAL
explained that Ms. Droge’s benefits are
governed by a collective bargaining
agreement and that her eligibility for
French social security benefits is
dictated by international treaty.
Specifically, UAL stated that a treaty
between the United States and France,
Agreement on Social Security Between the
United States and the French Republic
("treaty"), prevented it from
contributing to the French social
security system on behalf of American
citizens. The EEOC, however, determined
that it needed additional information in
order to assess the merits of the charge.
Consequently, it requested that UAL
provide the following:

1. Identify each and every benefit
received by employees of United Airlines
who are French citizens resident in
France including, but not limited to,
health insurance, unemployment insurance-
-or its equivalent, pension or social
security benefits--or their equivalents,
disability benefits, medical or family
leave benefits--or their equivalents.
2. For each benefit identified pursuant to
paragraph 1 above, state whether the
benefit is provided through a French
governmental entity, through a private
contractor, or directly by United
Airlines or its subsidiaries.

3. For each benefit identified pursuant to
paragraph 1 above, state whether United
Airlines or any of its subsidiaries makes
any financial contribution toward the
benefit.

4. For each benefit identified pursuant to
paragraph 1 above, state whether that
benefit is provided pursuant to law or
voluntarily. If it is providedpursuant to
law, identify the law which mandates the
benefit.

5. For each benefit identified pursuant to
paragraph 1 above, state whether the
benefit may be provided to United
employees residing in France who are not
French citizens. For any benefit which
United asserts may not be provided to
non-French citizens, state the basis of
that assertion.

6. For each benefit identified pursuant to
paragraph 1 above, state whether the
benefit is provided to United employees
residing in France who are not French
citizens.

7. For each benefit which may be provided
to United employees who reside in France
but are not French citizens state the
following:

a. Why is the benefit not provided to
those employees;

b. What benefit, if any, is provided to
those employees in lieu of the benefit
not provided.

8. For each benefit identified pursuant to
paragraph 7.b. above, state the cost to
United Airlines--in current U.S. dollars-
-of the benefit provided to employees who
are French citizens and the cost of the
benefit provided to employees who are not
French citizens.

9. For each benefit identified pursuant to
paragraph 7.b. above, state the value of
each benefit provided to employees who
are French citizens--in current U.S.
dollars--and state the value of each
benefit provided to employees who are not
French citizens.

10. Identify each United Airlines employee
residing abroad who has taken or been
placed on a medical leave of absence,
disability leave, or who has been
otherwise laid off. For each such
employee, state the basis for the leave
or layoff, the sex of the employee, the
citizenship of the employee and the
nationality of the employee. Specifically
identify any employee who has taken or
been placed on leave or layoff due to
pregnancy.

11. Identify each United Airlines employee
residing abroad who has applied for
unemployment compensation with the United
States Government or foreign governmental
entities due to medical related reasons
including but not limited to pregnancy.

12. For each employee identified pursuant
to paragraph 10 above, state any benefits
received by the employee as a result of
going on or being placed on leave or
being laid off, and the source of the
benefits.

R.2, Att. 3 (emphasis in original)./1

  UAL objected to the request on several
grounds. Primarily, it maintained that
the collective bargaining agreement, in
conjunction with the treaty, deprived the
EEOC of jurisdiction to investigate Ms.
Droge’s claims. UAL also maintained that
complying with the request would be
unduly burdensome. The EEOC found these
arguments unpersuasive and issued a
subpoena for the information requested.

  UAL challenged the subpoena through
administrative channels. In its petition
to revoke the subpoena, UAL reiterated
its belief that the collective bargaining
agreement and the treaty should end the
EEOC’s investigation. UAL also argued
that the subpoena was overly broad,
unduly burdensome and that it sought
irrelevant information. UAL was
unsuccessful in persuading the EEOC to
revoke the subpoena. However, the EEOC
did "limit the scope of the information
to be produced to the time frame" from
January 1, 1997 forward. R.9, Ex.3 at 8.

B.   District Court Proceedings
  After rejecting UAL’s arguments to
revoke the subpoena, the EEOC brought
this enforcement action in the district
court. In its moving papers, the EEOC
stated that it had jurisdiction to
investigate Ms. Droge’s charges of
national origin and sex discrimination
and that the inquiries were directed at
the charges. Therefore, it asserted,
given the narrow scope of subpoena
enforcement proceedings, the district
court ought to enforce the subpoena. The
district court issued an order to show
cause why the enforcement application
should not be granted.

  In response, UAL moved for summary
judgment or, in the alternative,
submitted an opposition to the
enforcement action. UAL argued that the
subpoena should not be enforced for
several reasons. It first claimed that
the investigation fell outside the EEOC’s
statutory authority. UAL also believed
that the subpoena sought information
unrelated to Ms. Droge’s underlying
charge. Finally, UAL maintained that the
subpoena was excessively burdensome. In
support of this argument, UAL presented
affidavits from its senior counsel and
its human resources manager responsible
for technical support. These individuals
attested that, given the number of UAL
employees, the number of countries in
which UAL has operations and the
limitations of UAL’s human resources
software, it would take approximately
"5.5 employees working 2000 hours apiece
for an entire year" to comply with the
subpoena as written. Declaration of
Jennifer Ansbro Hale, R.9, Ex.7 at para.
13; see also Declaration of Mitsuo Ogata,
R.9, Ex.8. The district court rejected
UAL’s motion for summary judgment, but
stated that it would consider UAL’s
submissions as an opposition to the
EEOC’s enforcement application.

  After a hearing, the district court
stated that it would "make this very
short." R.16 at 36. It then determined
that "[b]ased on the submissions of the
parties and the argument, the Court finds
that the EEOC does in fact have
jurisdiction to proceed on this matter.
And as I’ve pretty well articulated to
you previously, I’m not persuaded that
the subpoena is overburdensome." Id. The
court then asked the attorney for the
EEOC to draft an order reflecting the
decision. The order issued the following
day and stated:

THE COURT FINDS AS FOLLOWS:

1) The Equal Employment Opportunity
Commission ("EEOC") has jurisdiction to
investigate the underlying Charges in
this case as they allege national origin
and sex discrimination and therefore fall
within the scope of Title VII;

2) The information sought by the EEOC
subpoena is not unduly burdensome.

IT IS THEREBY ORDERED:

1) Respondent, United Air Lines, shall
fully comply with the Equal Employment
Opportunity Commission’s subpoena,
Subpoena No. CH-00-179;

2) Enforcement of this Order is stayed
pending Respondent’s appeal to and ruling
by the Seventh Circuit Court of Appeals.

R.12. UAL timely appealed.

II

DISCUSSION

A.   Standard of Review

  Subpoena enforcement proceedings "are
designed to be summary in nature." EEOC
v. Tempel Steel Co., 814 F.2d 482, 485
(7th Cir. 1987). The court has an
oversight role, but it is limited: "As
long as the investigation is within the
agency’s authority, the subpoena is not
too indefinite, and the information
sought is reasonably relevant, the
district court must enforce an
administrative subpoena." Id.

  We review many aspects of a district
court’s enforcement decision
deferentially.

A finding by the district court that
documents are reasonably relevant to a
legitimate agency purpose cannot be
overturned absent a showing that the
factual determinations on which it is
based are clearly erroneous or that the
ruling itself constitutes an abuse of
discretion. Similarly court assessments
of whether disclosure would be burdensome
. . . should only be reversed for abuse
of discretion . . . .

Dow Chem. Co. v. Allen, 672 F.2d 1262,
1267 (7th Cir. 1982) (citations omitted);
see also EEOC v. Quad/Graphics, Inc., 63
F.3d 642, 645 (7th Cir. 1995) (quoting
same). Questions of law that do not
depend on the district court’s factual
findings, however, are reviewed de novo.
See Dow Chem., 672 F.2d at 1267.

B.   Jurisdiction

  UAL first maintains that the district
court should have refused to enforce the
EEOC’s subpoena because the agency lacks
jurisdiction to investigate the
underlying charge. UAL primarily argues
that the charge should be construed as a
charge of citizenship discrimination, as
opposed to national origin
discrimination. Because citizenship
discrimination is not prohibited by Title
VII, UAL continues, the EEOC is not
authorized to investigate the claim. As a
corollary, UAL contends that the actions
identified in Ms. Droge’s charge are
sanctioned by international treaty.
Consequently, the treaty operates to
deprive the EEOC of investigative
authority concerning these actions.

  With respect to its first argument, UAL
focuses on the language used by the EEOC
in its subpoena which speaks in terms of
citizenship as opposed to country of
origin. See R.9, Ex.1 para.para. 1, 5, 7
& 8-10 ("1. Identify each and every
benefit received by employees of United
Airlines who are French citizens . . .
.") (emphasis added). UAL also points to
the EEOC’s determination letter--
declining to revoke the administrative
subpoena--which refers to Ms. Droge’s
national origin as "United States." R.9,
Ex.3 at 2.

  We begin our analysis with 42 U.S.C.
sec. 2000e-8(a), which provides the
statutory authority for EEOC
investigations. The section provides:

In connection with any investigation of a
charge filed under section 2000e-5 of
this title, the Commission or its
designated representative shall at all
reasonable times have access to, for the
purposes of examination, and the right to
copy 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.

Id. (emphasis added). The Supreme Court
has explained that the authority of the
EEOC to investigate is grounded in the
charge of discrimination:

[T]he EEOC’s investigative authority is
tied to charges filed with the
Commission; unlike other federal agencies
that possess plenary authority to demand
to see records relevant to matters within
their jurisdiction, the EEOC is entitled
to access only to evidence "relevant to
the charge under investigation."

EEOC v. Shell Oil Co., 466 U.S. 54, 64
(1984) (quoting 42 U.S.C. sec. 2000e-
8(a); footnotes omitted). Consequently,
the Court has concluded, a valid charge
of discrimination "is a jurisdictional
prerequisite to judicial enforcement of a
subpoena issued by the EEOC." Id. at 65.
Whether a specific charge is valid/2 is
determined from the face of the charge,
not from extrinsic evidence. See EEOC v.
K-Mart Corp., 694 F.2d 1055, 1065 (6th
Cir. 1982).

  Turning to the   charge at issue, we do
not believe that   the charge fails to
allege an injury   that, on its face, is
covered by Title   VII. It states:

I. I am employed by Respondent in Paris,
France. Respondent does not pay into the
French Social Security system for me and
other Americans employed or domiciled in
France. As a result, Americans are not
compensated for absences from work due to
illness or temporary disability whereas
French employees are.

II. I believe that I and other Americans
have been discriminated against because
of our national origin in violation of
Title VII of the Civil Rights Act of
1964, as amended, in that Respondent does
not contribute to the French Social
[security system], but is permitted to do
so under French law, for Americans
employed or domiciled in France.

R.9, Tab 9, Ex.B. The charge, therefore,
identifies the allegedly discriminatory
act and alleges a basis for the
discrimination--national origin--that is
covered by Title VII./3

  UAL does not point to any infirmities in
the charge. Instead, it relies solely on
language chosen by the EEOC in its
subpoena and determination letter.
Although the EEOC’s use of the terms
"citizen" and "United States" may suggest
that the EEOC’s attention is focused upon
citizenship as opposed to national
origin, and, as a result, may strengthen
UAL’s argument that the EEOC’s inquiries
are not directed at investigating the
underlying charge of national origin
discrimination, this language does not
affect the validity of the underlying
charge or the EEOC’s authority to
investigate it./4

  UAL argues alternatively that the treaty
operates to divest the EEOC of authority
to investigate Ms. Droge’s charge.
Specifically, UAL points to this court’s
decisions in Fortino v. Quasar Co., 950
F.2d 389 (7th Cir. 1991), and Weeks v.
Samsung Heavy Industries Co., 126 F.3d
926 (7th Cir. 1997), for the proposition
that the treaty deprives the EEOC of
jurisdiction in this matter. We believe
UAL reads these cases too broadly.
Neither of these cases addresses the
authority of the EEOC to investigate a
charge of discrimination. The claims at
issue in Fortino and Weeks already had
proceeded through the EEOC, and were
before this court on an appeal from a
judge and jury verdict and on an appeal
from summary judgment, respectively. In
both cases, we determined that the
exercise of treaty rights--in those cases
the right of a foreign sovereign to
employ their own citizens--"may not be
made the basis for inferring a violation
of Title VII." Fortino, 950 F.2d at 393;
Weeks, 126 F.3d at 935 (quoting same).
Consequently, we dismissed the national
origin claim in Fortino and affirmed the
grant of summary judgment in Weeks.

  "However, 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.
Tempel Steel Co., 814 F.2d 482, 486 (7th
Cir. 1989). Even if an employer offers a
valid defense in response to the charge,
or presents facts that undermine the
EEOC’s jurisdiction, the EEOC does not
have to take an employer at its word, but
may investigate the underlying charge to
determine the validity of the defenses
raised. See Commodity Trend Serv., Inc.
v. CFTC, 233 F.3d 981, 986 (7th Cir.
2000) ("An agency may investigate to
determine whether it has jurisdiction
over a party as long as the party’s
conduct superficially appears to bring it
within the jurisdiction of the agency . .
. ."); EEOC v. A.E. Staley Mfg. Co., 711
F.2d 780, 787 (7th Cir. 1983) ("We note
initially that the mere assertion by an
employer that his employment practices
are lawful does not deprive the EEOC of
jurisdiction. No action would ever be
brought against an employer if the
jurisdiction of the EEOC depended upon
the assertions of employers as to whether
their own employment practices were
lawful."). Consequently, even when an
employer asserts that its actions are
protected or excused by international
treaty, there is a legitimate role for
the EEOC.

C.   Relevance and Burdensomeness

  UAL next argues that the subpoena as
written requests information that is not
relevant to determining whether UAL could
have contributed to the French social
security system on behalf of Ms. Droge.
Alternatively, even if the information
were relevant, UAL submits that complying
with the subpoena would place an undue
burden on UAL. The EEOC, on the other
hand, believes that it only has to
establish that the information requested
is minimally relevant. It further claims
that, because the information sought
meets this requirement, it is entitled to
have the subpoena enforced absent
evidence that compliance would disrupt
UAL’s normal business operations. We do
not believe that either of these views
accurately reflects the relationship
between relevance and burdensomeness in
the context of agency subpoenas.


  1.   Relevance

  The EEOC’s investigative authority is
not plenary; the EEOC "is entitled to
access only to evidence relevant to the
charge under investigation." Shell Oil,
466 U.S. at 64 (internal quotation marks
and citations omitted). As discussed
previously, see supra page 10, one aspect
of this statutory requirement is a valid
charge to form the basis of the EEOC’s
investigation. The charge requirement
evidences "Congress’ desire to prevent
the Commission from exercising
unconstrained investigative authority."
Shell Oil, 466 U.S. at 65.

  Furthermore, "the Commission is entitled
to access only to evidence ’relevant’ to
the charge under investigation." Id. at
68 (quoting 42 U.S.C. sec. 2000e-8)
(emphasis added). The EEOC’s burden is
not particularly onerous. See id. at 68;
see also EEOC v. S. Farm Bureau Cas. Ins.
Co., 271 F.3d 209, 211 (5th Cir. 2001)
(stating that the district court will en
force a subpoena "when the EEOC carries
its burden of demonstrating that the
information requested is relevant to the
charge filed against the employer").
Courts traditionally have allowed the
EEOC access to information "that might
cast light on the allegations against the
employer." Shell Oil, 466 U.S. at 68-
69./5

  A closer look at some of the cases
supporting the Court’s rationale in Shell
Oil sheds significant light on the
meaning of "relevance" in the subpoena
context. For example, in Shell Oil the
Court referenced its decision in United
States v. Arthur Young & Co., 465 U.S.
805 (1984), in which it had adopted an
"expansive definition of ’relevance’" in
the "analogous context of an IRS
subpoena, pursuant to 26 U.S.C. sec.
7602, of workpapers pertaining to an
investigation of the correctness of a tax
return." Shell Oil, 466 U.S. at 69 n.20.
In Arthur Young, the Supreme Court
distinguished the relevance standard
employed in the subpoena context from the
relevance standard employed "in deciding
whether to admit evidence in federal
court." Arthur Young, 465 U.S. at 814.
The Court remarked that the courts of
appeals had accepted widely the broader
concept of "relevance" in the formulation
that subpoenaed documents "might throw
light upon the correctness of the
return." Id. n.11 (internal quotation
marks omitted). It further noted that the
Second Circuit, in elaborating upon this
standard, had required that the "might"
in the articulated standard be indicative
of "’a realistic expectation rather than
an idle hope that something may be discovered.’"
Id. (quoting United States v. Harrington,
388 F.2d 520, 524 (1968)).
  In further refining the concept of
relevance in Shell Oil, the Supreme Court
also approved the decision of the Sixth
Circuit in Blue Bell Boots, Inc. v. EEOC,
418 F.2d 355 (6th Cir. 1969). In that
case, the Sixth Circuit stated that
racial discrimination is "by definition
class discrimination" and held that, in
determining whether an employer practiced
racial discrimination, the existence of
discrimination in job classifications or
hiring situations other than those of the
complainants "may well justify an
inference that the practices complained
of here were motivated by racial
factors." Blue Bell Boots, 418 F.2d at
358; see also EEOC v. Roadway Express,
Inc., 750 F.2d 40, 43 (6th Cir. 1984)
(citing Blue Bell Boots for the
proposition that "evidence concerning
employment practices other than those
specifically charged by complainants may
be sought by an EEOC administrative
subpoena"). As another example of the
permissible scope of a subpoena, the
Court in Shell Oil cited Local No. 104,
Sheet Metal Workers v. EEOC, 439 F.2d
237, 243 (9th Cir. 1971), for the
proposition that information from conduct
prior to the effective date of the
legislation can also be relevant to
establish the purpose and effect of
current policies. See Shell Oil, 466 U.S.
at 69 n.20.

  However, the Supreme Court also has
cautioned that the charge and relevance
requirements should not be interpreted so
broadly as to render the statutory
language a "nullity." Id. at 69. The
requirement of relevance, like the charge
requirement itself, is designed to cabin
the EEOC’s authority and prevent "fishing
expedition[s]." K-Mart Corp., 694 F.2d at
1066. Indeed, as we have noted
previously, although the legitimate scope
of the subpoena power includes
information that "might throw light upon"
the inquiry raised by the complaint, "the
might" is "an indication of a realistic
expectation rather than an idle hope that
something may be discovered." Harrington,
388 F.2d at 524. Absent a finding that
the material sought is relevant, a court
may not enforce an EEOC subpoena. See S.
Farm Bureau Ins., 271 F.3d at 211; EEOC
v. Ford Motor Credit Co., 26 F.3d 44, 47
(6th Cir. 1994).
  2.   Burdensomeness

  In determining whether a subpoena ought
to be enforced, modified or quashed, the
district court also must consider the
burdensomeness of compliance. "[T]he
presumption is that compliance should be
enforced to further the agency’s
legitimate inquiry into matters of public
interest." FTC v. Shaffner, 626 F.2d 32,
38 (7th Cir. 1980). Consequently, a court
may modify or exclude portions of a
subpoena only if the employer "carries
the difficult burden of showing that the
demands are unduly burdensome or
unreasonably broad." Id. Often we have
phrased this "difficult burden" as
requiring a showing that "compliance
would threaten the normal operation of a
respondent’s business." EEOC v. Bay
Shipbuilding Corp., 668 F.2d 304, 313
(7th Cir. 1981). However, as Shaffner
emphasizes, that scenario is more
illustrative than categorical. "What is
unduly burdensome depends on the
particular facts of each case and no hard
and fast rule can be applied to resolve
the question." Shaffner, 626 F.2d at 38.
Conclusory allegations of burdensomeness
are insufficient. Id.

  We often have considered the cost of
compliance when evaluating
burdensomeness. If the personnel or
financial burden on the employer is great
compared to the resources the employer
has at its disposal, the district court
should attempt to alleviate this burden.
See, e.g., Quad/Graphics, 63 F.3d at 649
(rejecting burdensomeness argument in
part because EEOC’s offer of random
sampling would reduce by ninety percent
the time involved in complying with the
subpoena). Essentially, it is the
"court’s task . . . to weigh the likely
relevance of the requested material to
the investigation against the burden to
[the respondent] of producing the
material." Ford Motor Credit, 26 F.3d at
47.


  3.   Application

  When considerations of relevance and
undue burden are applied to the present
case, we do not believe that the
subpoena, as issued, can be enforced./6
In assessing the relevance of the
information requested by the subpoena, we
examine first the nature of the charge.
In her charge of discrimination, Ms.
Droge alleges that she has suffered
discrimination on the basis of her
national origin and sex because of UAL’s
failure to make contributions to the
French social security system on her
behalf. The information sought, however,
goes far beyond an inquiry into whether
and for whom UAL makes French social
security payments. It is not limited to
individuals who may be considered
similarly situated to Ms. Droge either by
position (flight attendant) or by
location (France); the subpoena requires
extensive information with respect to all
United employees residing abroad. As the
Fifth Circuit wrote in EEOC v. Packard
Electric Division, General Motors
Corporation, 569 F.2d 315, 318 (5th Cir.
1978), "[i]n the context of an
investigation of an individual complaint,
it might well be most natural to focus on
that employing unit or work unit from
which came the decision of which the
individual complainant complains; within
such a unit the EEOC might well need a
wide spectrum of statistical data in
order to illuminate the general policies
bearing on the complainant’s situation."

  In spite of this caution, the EEOC
maintains that all the requested
information will tend to "cast light" on
Ms. Droge’s allegations. See Appellee’s
Br. at 24. Although the relevance
requirement is not onerous, we believe
that accepting the EEOC’s interpretation
of relevance in this case would render
that requirement a "nullity." In the face
of UAL’s demonstration of the breadth of
the subpoena in relation to the charge,
the EEOC has made a feeble, and
unconvincing, effort to explain how a
wholesale review of "each and every
benefit" provided to all UAL’s French em
ployees will shed light on the propriety
of UAL’s failure to pay into the French
social security system. See R.2, Att. 2
para. 1. The district court and this
court are left without any realistic
explanation of the possible relevance of
how providing the EEOC with information
on "each United Airlines employee
residing abroad who has taken . . . a
medical leave of absence," id. para. 10,
might assist it in resolving Ms. Droge’s
charge. Cf. Packard Elec., 569 F.2d at
318 (acknowledging that "statistical
information may be used to establish that
the treatment of a particular employee
follows a general pattern of employer
discrimination," but stating that "it
does not help us in determining precisely
what statistical and comparative data are
to be deemed ’relevant’"; the court "must
look to the particular purpose of the
investigation in question").

  The EEOC argues alternatively that it
"must have access to employment
information concerning a broad range of
employees to be able to determine whether
United’s policies have a disparate impact
on men and women and whether United’s
policies discriminate based on national
origin." Appellee’s Br. at 26. However,
the "policy" at issue in the charge is
UAL’s failure to pay into the French
social security system. Nothing in the
charge suggests systemic discrimination
on the basis of national origin or sex
with respect to life, health, disability
and leave benefits./7 Allowing the EEOC
to conduct such a broad investigation
would require us to disregard the
Congressional requirement that the
investigation be based on the charge.

  Even if we were to find that all the
information required by the subpoena was
relevant to the charge in some tangential
way, we would have to conclude that the
voluminous request of the EEOC is overly
burdensome. The financial and
administrative demand placed on UAL is
significant and, in light of the
tangential need for the information, an
undue burden on UAL.

  The EEOC has the right, of course, to
investigate the charge now before it. On
remand, the district court must
undertake, consistent with our opinion
today, the fact-bound inquiries necessary
to determine the relevance of each of the
requests that pertains to the charge
currently before the EEOC. However,
before undertaking this task, we believe
it is incumbent on the district court
first to resolve whether there is any
possibility that Ms. Droge might prevail
on her complaint. We note that counsel
for the EEOC conceded at oral argument
that UAL is correct in its submission
that a treaty between the United States
and France precludes UAL’s making the
contributions to the French social
security system that Ms. Droge claims
have been denied her. If the existence of
that treaty obligation resolves the
matter, we see no reason for the district
court to undertake any additional
scrutiny of the subpoena because the EEOC
would have no ground upon which to
justify its issuance. The EEOC cannot
justify further investigating a charge
for which it has conceded there is a
valid affirmative defense.

Conclusion

  For the foregoing reasons, we affirm the
judgment of the district court on the
jurisdictional issue. In all other
respects, we reverse the judgment of the
district court and remand for further
proceedings consistent with this opinion.
UAL may recover its costs in this court.

AFFIRMED in part;
REVERSED and REMANDED in part

FOOTNOTES

/1 On February 6, 2000, two days after the EEOC sent
its request for information to UAL, Ms. Droge
filed a second charge of discrimination. See R.9,
Ex.9, Att. E. In that charge, Ms. Droge alleged
that UAL had frustrated her efforts to obtain
benefits from the "Caisse d’ Allocations Fam-
iliales" and that it otherwise had retaliated
against her for filing her original charge. Id.
Still later, in June 2000, Ms. Droge amended her
original charge. See R.9, Ex.9, Att. B. Her
amendment did not alter the substantive allega-
tions of the charge; however, she checked the box
on the form to indicate that she had suffered
discrimination on the basis of her sex and stat-
ed: "I believe that I and other females have been
discriminated against in violation of Title VII."
Id. In its brief, the EEOC relies on the amended
charge--specifically the fact that it includes
allegations of sex discrimination--to justify the
breadth of the information requested. However,
the EEOC does not mention the February 6, 2000
retaliation charge, nor does the EEOC rely upon
that charge as a basis for its information re-
quest.

/2 The statutory requirements for a charge of dis-
crimination are set forth at 42 U.S.C. sec.
2000e-5(b).

/3 There is no question that, if the charge alleged
only citizenship discrimination, it would be
outside the scope of Title VII. See Espinoza v.
Farah Mfg. Co., Inc., 414 U.S. 86, 95 (1973)
("[N]othing in the Act makes it illegal to dis-
criminate on the basis of citizenship or alien-
age."); Fortino v. Quasar Co., 950 F.2d 389, 391-
92 (7th Cir. 1991) ("Title VII forbids discrimi-
nation on the basis of national origin, not of
citizenship.").

/4 The charge was amended subsequently to include
sex discrimination. Because we resolve the juris-
dictional issue on the basis of the original
charge, we have no occasion to consider UAL’s
claim that the EEOC cannot rely on the grounds
stated in the amended charge to support jurisdic-
tion.

/5 Notably, "[i]n order to obtain enforcement of an
administrative subpoena, the EEOC usually does
not have to prove either probable cause or rea-
sonable cause to believe that the charge of
discrimination is true. Indeed, the purpose of
the investigation is to determine whether proba-
ble cause or reasonable cause to bring a discrim-
ination charge exists." EEOC v. K-Mart Corp., 694
F.2d 1055, 1066 (6th Cir. 1982) (internal cita-
tions omitted).

/6 We review a district court’s finding of relevance
under a deferential standard. See supra pp. 8-9.
However where, as here, the district court has
failed to address the issue of relevance, we
examine the issue of relevance de novo. Similar-
ly, because the district court did not apply the
correct legal standard in determining the burden-
someness of the subpoena, we review that issue de
novo as well.

/7 Should the EEOC discover, in the course of a
significantly narrowed inquiry, evidence of a
broader pattern of discrimination, it is, of
course, free to file a commissioner’s charge
incorporating those allegations and broaden its
investigation accordingly. See EEOC v. S. Farm
Bureau Cas. Ins. Co., 271 F.3d 209, 211 (5th Cir.
2001). Without a broader charge, however, the
EEOC’s current request cannot be sanctioned.
