Supreme Court Bolsters District Court Determinations on EEOC Subpoenas

Reasons to oppose subpoenas are irrelevancy, undue burden, vagueness and illegitimate purpose

By Allen Smith, J.D. Apr 5, 2017
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Employers may have more success opposing subpoenas from the Equal Employment Opportunity Commission (EEOC) following a Supreme Court ruling. But they also may have more difficulty fighting district court decisions to uphold those subpoenas.

The justices concluded April 3 that appeals courts ordinarily should defer to district court rulings on whether the agency's subpoenas are irrelevant or too burdensome.

In the case before the high court, the district court had struck down the opposed portion of an EEOC subpoena as irrelevant. The appeals court ruled that the subpoena should be enforced. The Supreme Court reversed.

District courts now will be "more likely to exercise their discretion to limit the scope of subpoenas," predicted Abad Lopez, an attorney with Dykema in Chicago.

A district court's ruling for or against an employer challenging an EEOC subpoena will be more difficult to overturn on an appeal under the new standard, said Gerald Maatman Jr., an attorney with Seyfarth Shaw in Chicago. Since district courts usually agree to enforce EEOC subpoenas, this will require employers to craft challenges to subpoenas based on specific and compelling showings of burdensomeness, lack of relevance or issuance of the subpoena for an improper purpose, he added.

"Many employers have had the experience of responding to charges of discrimination in which the EEOC seeks information that far exceeds the scope of the underlying charge. This case is a good reminder that there are limits to the EEOC's subpoena power," said Melissa Raphan, an attorney with Dorsey & Whitney in Minneapolis. In particular, the decision shows "that the EEOC's subpoena power does not allow the agency to bypass the burden of showing that the material is relevant."

In addition to relevancy and not imposing an undue burden, the Supreme Court noted that a subpoena might not be enforced if the information it seeks is too indefinite or for an illegitimate purpose, said Nicole Eichberger, an attorney with Proskauer in New Orleans. HR and counsel should work together to identify those parts of a subpoena that a company will oppose, she said.

Physical Evaluation

The case before the court demonstrates the need for EEOC subpoenas to request only information relevant to the investigation. The plaintiff Damiana Ochoa worked as a "cigarette selector" for McLane Co., a supply-chain services provider for convenience stores. Cigarette selectors work in distribution centers where they must lift, pack and move large bins containing products. McLane requires new employees and workers returning from medical leave to take a physical evaluation.

[SHRM members-only toolkit: Avoiding Adverse Impact in Employment Practices]

Ochoa took three months of maternity leave in 2007. When she attempted to return to work, she was asked to take the physical. She failed it three times, and McLane fired her.

Names, SSNs, Addresses and Phone Numbers

In the sex and age discrimination lawsuit that ensued, the EEOC sought the names, Social Security numbers (SSNs), last known addresses and telephone numbers of the employees nationwide who had been asked to take the physical evaluation. The EEOC sought this information after the agency discovered the evaluation was administered to new hires and returning employees across the country. McLane refused to produce this information, arguing that it was irrelevant, and the district court agreed.

However, the 9th U.S. Circuit Court of Appeals did not defer to the district court's decision. The appeals court instead looked at the issue afresh and determined that the EEOC's subpoena should have been enforced.

Deferring to District Court's Rulings on Subpoenas

Writing for the majority and joined by all the other justices except Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor reasoned that appeals courts should defer to district court rulings on subpoenas in most cases, giving them a so-called abuse of discretion review. In other words, unless the district court abused its discretion to rule on subpoenas, the district court's decision would be upheld.

District courts should be aware of the agency's broad authority to seek and obtain evidence, the court said. The EEOC should have "access to virtually any material that might cast light on the allegations against the employer," the court stated.

But it shouldn't be permitted to go on a fishing expedition, Lopez added.

Concurrence and Dissent in Part

Ginsburg concurred in part and dissented in part.

She agreed that "abuse of discretion" is generally the proper review standard that appeals courts should grant to district courts that rule on subpoenas. But she nevertheless would have affirmed the 9th Circuit's decision. The district court's decision was, in Ginsburg's opinion, a legal error and not entitled to deference.

This case is McLane Co. v. EEOC, No. 15-1248.

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