EEOC Granted Broad Right to Employee Data in Sex Bias Investigation

By Dean Kpere-Daibo Nov 25, 2015
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The Equal Employment Opportunity Commission (EEOC), while investigating a sex discrimination charge, must be given access to personal information about other employees who took the same physical abilities test that was failed by the female employee who filed the bias charge, the 9th U.S. Circuit Court of Appeals ruled.

Reversing an Arizona district court, the 9th Circuit said McLane Co., a supply chain company that serves retailers, must provide the EEOC with the names, Social Security numbers, home addresses and telephone numbers of employees who took the test that former employee Damiana Ochoa had failed, causing her to lose her warehouse job. The district court erred in ruling that the EEOC's request for this “pedigree information” about the other test- akers wasn't relevant to Ochoa's sex bias charge under Title VII of the 1964 Civil Rights Act, the appeals court said.

Ochoa claimed that McLane violated Title VII when she was not allowed to return to work after taking maternity leave. She alleged that she was told that she could not resume her position unless she passed a strength test, and that she was terminated after she failed the test three times.

During the EEOC’s investigation, McLane disclosed that it used the strength test at all its facilities nationwide for all positions classified as physically demanding. McLane also disclosed that all new applicants and employees returning from leaves longer than 30 days were required to pass the test. In addition, McLane voluntarily provided general information about the test and the individuals who had been required to take the test. However, McLane refused to disclose the pedigree information for each test-taker and refused to disclose the reasons for termination for those who had taken the test and were later terminated. The EEOC issued an administrative subpoena demanding production of the withheld information, and after McLane continued to refuse, the EEOC filed an action to enforce the subpoena.

The district court granted in part and denied in part the EEOC’s request for enforcement. The district court required McLane to disclose some of the information subpoenaed by the EEOC. However, the district court refused to enforce the subpoena to the extent it required McLane to divulge the pedigree information for each test-taker and the reason for termination for those employees who were terminated after taking the test. The district court determined the pedigree information was not relevant at this stage of the EEOC’s investigation without the EEOC explaining its rationale.

On appeal, the circuit court noted that the EEOC was attempting to determine if reasonable cause existed to believe that Ochoa’s sex bias charge had merit. In response, McLane argued the pedigree information was irrelevant because the former employee’s charge only alleged a disparate impact claim, not a pattern-or-practice disparate treatment claim. The circuit court rejected McLane’s assertion and held that the former employee’s charge was general enough to support either a disparate impact or a disparate treatment claim. Second, McLane argued that because it had already provided a significant amount of information, the EEOC could not show the pedigree information was “necessary” to complete the investigation. The circuit court held that the standard to determine whether to enforce an EEOC subpoena is not necessity, but relevance.

Finally, McLane asserted that the pedigree information was irrelevant because the employee’s charge was made against a “neutrally applied” strength test, which by definition cannot give rise to disparate treatment, systemic or otherwise. The circuit court rejected McLane’s argument, noting that while McLane’s policy was to require all employees returning from leave to take the test, it could still be applied in a discriminatory manner if, for example, male employees who failed were allowed to return whereas female employees were not. This was the reason the EEOC needed the information to properly investigate the charge. The circuit court also brushed aside McLane’s privacy concerns over releasing Social Security numbers because of Title VII’s strict limitations on public disclosure of information obtained during an investigation.

Regarding the EEOC’s request for the reasons for termination for each test-taker, McLane argued that producing this information would pose an undue burden. McLane prevailed on this argument in a parallel subpoena enforcement action in an Age Discrimination in Employment Act case where the EEOC sought the reasons for terminations that were triggered by the failure of the test. The circuit court held that the EEOC was not precluded from litigating the undue hardship issue in this matter and remanded this issue back to the district court. In doing so, the circuit court noted that the EEOC’s request in this case did not require McLane to produce information for employees whose dismissal was triggered by their failure to pass the test. Instead, the circuit court noted that the EEOC’s request was for information regarding terminated employees who had previously taken the test, regardless of any linkage between the two. Thus, McLane was left with a ruling that required production of pedigree information and remand to the district court on the issue of whether requiring McLane to produce the reasons for termination for each test-taker was in fact unduly burdensome.

EEOC v. McLane Company Inc., 9thCir., No. 13-15126 (Oct. 27, 2015).

Professional Pointer: The courts will typically give the EEOC broad discretion to direct the scope of an investigation. Employers would be well-advised to make an effort to reach an acceptable compromise before refusing an EEOC request for information.

Dean Kpere-Daibo is an attorney at McMahon Berger P.C., the Worklaw® Network member firm in St. Louis.

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