On remand from the United States Supreme Court, the Ninth Circuit again vacated a District Court’s Order denying enforcement of an administrative subpoena issued to an employer by the Equal Employment Opportunity Commission (“EEOC”), the federal agency tasked with enforcing federal employment anti-discrimination laws. EEOC v. McLane Co., Inc., No. 13-15126, 2007 WL 2261015, at *1 (9th Cir. May 24, 2017). Specifically, the Ninth Circuit found the EEOC’s power under Title VII of the Civil Rights Act of 1964 to conduct investigations is sufficiently broad to support a subpoena request for “virtually any material that might cast light on the allegations against the employer.” (Citing EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984).)
In McLane, an employee filed a charge with the EEOC alleging her employer discriminated against her on the basis of sex when it fired her after she failed to pass a physical capability strength test. As part of its investigation into the employee’s charge, the EEOC issued a subpoena to her employer requesting “‘pedigree information’ (name, Social Security number, last known address, and telephone number) for employees or prospective employees” who took the same strength test at issue. The employer objected to the subpoena on grounds that it was overly broad, unduly burdensome, and sought information that was not relevant to the employee’s charge. The EEOC subsequently moved to enforce its subpoena, which the District Court denied after concluding “the pedigree information was not relevant ‘at this stage’ of the EEOC’s investigation because the evidence [the employer] had already produced would enable the [EEOC] to determine whether the [strength test] systematically discriminates on the basis of gender.”
Reviewing the matter de novo, the Ninth Circuit held the District Court erred in denying enforcement of the EEOC subpoena. The United States Supreme Court subsequently remanded the matter to the Ninth Circuit, concluding the District Court’s Order was subject to an abuse of discretion standard, not de novo review. Applying the abuse of discretion standard on remand, the Ninth Circuit reached the same conclusion: the pedigree information was relevant to the EEOC’s investigation.
In reaching this conclusion, the Ninth Circuit affirmed the EEOC’s authority under Title VII to obtain evidence from an employer if the evidence “relates to employment practices made unlawful under Title VII and is relevant to the charge under investigation.” (Citations omitted.) The Ninth Circuit further clarified that the “relevance limitation” imposed by Title VII “is not especially constraining,” and in the investigative context it “encompasses ‘virtually any material that might cast light on the allegations against the employer.’” (Citing Shell Oil Co., 466 U.S. at 68.) Guided by these principles, the Ninth Circuit found that the pedigree information was relevant since “[s]peaking with those individuals ‘might cast light’ on the allegations against [the employer].” The Ninth Circuit also determined that the “EEOC’s need for the evidence – or lack thereof – simply does not factor into the relevance determination.”
McLane is an important reminder that the EEOC’s subpoena powers are remarkably broad. Employers, therefore, should give careful consideration when deciding whether to challenge the breadth and scope of the EEOC’s request for evidence, especially at the investigative level. As McLane suggests, such endeavors may prove futile and expensive.
This document is intended to provide you with information about employment and labor law related developments. The contents of this document are not intended to provide specific legal advice. This communication may be considered advertising in some jurisdictions.