Supreme Court Takes Up EEOC Subpoena Case


Allen Smith, J.D. By Allen Smith, J.D. October 4, 2016

The U.S. Supreme Court announced on Sept. 29 that it will decide whether federal appeals courts may review Equal Employment Opportunity Commission (EEOC) subpoenas as if for the first time, rather than deferring to lower courts' determinations about the agency's orders.  

Businesses might be rooting for the Supreme Court to decide that appeals courts should listen more closely to district courts.

"Employers do reasonably well in convincing federal district court judges to narrow EEOC investigative subpoenas," said Don Livingston, an attorney with Akin Gump in Washington, D.C., and a former EEOC general counsel.

"The more deference given to the district court judges by the courts of appeal, the more the EEOC will be required to tailor requests to the matter under investigation," Livingston said. "This means less work for HR professionals in responding to EEOC's requests for information and subpoenas, and less risk that the EEOC investigation will stray into areas not covered by the charge under investigation."

Physical Evaluations Required

In the case that the Supreme Court will review—(McLane Co. v. EEOC, No. 15-1248)—McLane, a large consumer goods distribution company, required all new hires and all workers who were away from the physically demanding aspects of their jobs due to a medical condition for more than 30 days to undergo physical evaluations.

After taking maternity leave in 2007, Damiana Ochoa, who worked in McLane's Arizona facility, failed the evaluation three times. As a result, the company discharged her.

Ochoa filed a charge of gender discrimination. She added a disability discrimination charge but did not allege that she has a disability.

After starting its review of the Ochoa charge, the EEOC in 2009 greatly expanded the scope of its investigation beyond her localized sex discrimination charge. The agency sought nationwide information about all of the 20,545 employees at 39 McLane grocery and food service distribution centers, including information about age—even though Ochoa's charge never mentioned age and she was under the age of 40 when she filed the charge. The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against employees who are 40 or older.

Two Subpoenas

McLane sought to cooperate with the EEOC and requested a meeting with the agency to work out a manageable data set that would be acceptable to the EEOC.

The EEOC did not meet with the company, but instead issued two almost identical subpoenas: one related to Ochoa's charge and the other related to an ADEA charge that the EEOC filed in connection with its inquiry about employee ages.

The EEOC first sued to enforce the ADEA subpoena. The district court determined that the EEOC's stated scope of the investigation—to determine whether the evaluation represents a tool of age discrimination in the aggregate—warranted nationwide statistical data.

But the district court upheld McLane's objection to the EEOC's request for names, addresses, phone numbers and Social Security numbers for the thousands of individuals who have taken the evaluation. And the court determined that providing information about why any particular employee who took the evaluation was terminated would be an undue burden, so McLane did not have to provide that information. The court did order McLane, however, to produce information about whether an adverse employment action was taken against any person who took the evaluation within 90 days.

The EEOC then asked for the same information it was denied under the ADEA subpoena by seeking to enforce the Ochoa subpoena. The district court enforced the Ochoa subpoena to the same extent as the ADEA subpoena.

On appeal, the 9th U.S. Circuit Court of Appeals reviewed the district court's decision on the Ochoa subpoena without deferring to the district court, instead ruling afresh (i.e., de novo review). The appeals court decided that McLane had to provide the names, addresses, phone numbers and Social Security numbers for those who had taken the evaluation. This information could assist the EEOC in investigating sex discrimination, and there was no undue burden in producing Social Security numbers, the court determined.

"The 9th Circuit—while conceding it is unclear why it does so—applies a de novo standard of review to a district court's determination of the relevance of information sought by subpoena in the course of an agency investigation," McLane argued in its motion for the Supreme Court to review the case. "In doing so, the 9th Circuit has departed from the other circuits that have considered the question, which have recognized that appellate courts should not substitute their own judgments for those of district courts on determinations involving mixed questions of law and fact traditionally left to the discretion of trial courts."

Privacy Interests

McLane resisted producing the Social Security numbers partly to protect the employees' privacy interests.

In concurring with the 9th Circuit's majority decision, Judge Milan Smith stated that "of particular relevance is the United States government's dismal performance in protecting even its own employees' sensitive data." He cited the June 2015 discovery of the theft from the Office of Personnel Management of 21.5 million Social Security numbers and 5.6 million fingerprints.

"Thus, it may be that the EEOC's insistence here on obtaining Social Security numbers and other information that could be used to steal an employee's identity will endanger the very employees it seeks to protect." While the EEOC might rethink its request for Social Security numbers, according to this judge, he agreed that the company should provide employees' names, addresses and phone numbers.

Grounds for Challenging Subpoenas

Livingston noted that when opposing EEOC subpoenas, employers typically challenge their:

  • Geographic scope (e.g., an individual charge alleges an individualized claim at one store and a subpoena seeks information from 13 stores).
  • Temporal scope (e.g., the subpoena seeks hiring and promotion information for the past 12 years).
  • Information about categories of discrimination not alleged in the charge.
  • Information about employment practices not alleged in the charge.
  • Undue burden.

He added, "District courts, which see the EEOC regularly in a variety of cases, are less likely to view the EEOC as a neutral fact-finder than are the courts of appeal. The district courts review the EEOC arguments more skeptically, and are therefore less likely to defer to the EEOC's judgment about relevance."


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