By Laura Walker
The U.S. Equal Employment Opportunity Commission’s use of investigative subpoenas has increased in recent years. In 2015, the EEOC initiated 32 subpoena enforcement actions, which was comparable to the enforcement actions in 2014 but was double the 17 actions the EEOC took in 2013. The Supreme Court of the United States is currently reviewing the EEOC’s investigative subpoena power in U.S. E.E.O.C. v. McLane Co., 804 F.3d 1051 (9th Cir. 2015), cert. granted in part sub nom. McLane Co. v. E.E.O.C., 137 S. Ct. 30, (2016). The court is specifically addressing how appellate courts should review district courts’ decisions to quash or enforce an EEOC subpoena.
The dispute in McLane arose from an EEOC investigation into a sexual discrimination claim filed by a former employee who alleged she was fired after she failed to pass several strength tests upon returning to work after maternity leave. According to the court’s records, while the EEOC was reviewing the charge, it decided to expand its investigation and began to look at McLane’s nationwide compliance with the federal discrimination laws. The EEOC sought, among other things, “pedigree” information including names, Social Security numbers and phone numbers of thousands of applicants and employees who took the strength test. The district court refused to compel McLane to turn over this information, in part, because the EEOC had not shown it was relevant, at least not at this stage, in the investigation.
The EEOC appealed the district court’s decision to the 9th Circuit, which reviewed the lower court’s decision de novo, providing no deference to it, and decided the information was relevant to the EEOC’s investigation. The company promptly filed an appeal to the Supreme Court urging the court to step in where the decision by the 9th Circuit was contrary to eight other circuits. McLane asked the high court to determine the appropriate review standard of a district court’s decision to quash or enforce an EEOC subpoena and specifically requested the review be deferential rather than de novo.
The Supreme Court heard argument in February wherein both parties agreed that a deferential standard was appropriate. Notably, the EEOC argued that the 9th Circuit’s decision should be affirmed because even under the deferential standard, the same conclusion would have been reached and the district court’s refusal to compel McLane to turn over the pedigree information should be reversed. If the Supreme Court finds that the de novo standard is more appropriate for the review of a district court’s decision regarding EEOC investigation subpoena power, it could incite more appeals, particularly from the EEOC, increase defense costs and draw out EEOC investigations. Moreover, de novo review could allow the EEOC two bites of the apple to gain additional information during its investigation.
Conversely, if the Supreme Court uses the deferential standard, the losing side in future cases is more likely to accept the district court’s finding and move on, which could speed up the investigations. During arguments, the justices noted that an agency like the EEOC is limited in making overly broad requests in part by the Fourth Amendment and noted that the reviews of excessive searches under the Fourth Amendment are conducted pursuant to the de novo standard.
The interpretation of the extent of the power of the EEOC’s investigative subpoenas could have far-reaching implications. During arguments, the justices veered into a broader territory of how much authority the EEOC should have in pursuing its subpoenas. Specifically, Justice Ruth Bader Ginsburg questioned the EEOC over whether the personal information at issue was even relevant to the EEOC charge under investigation and if that information could even “shed light” on the charge. Justice Stephen Breyer also questioned why interviews of each employee needed to take place and whether the production of personal information of each employee amounts to an undue burden on the employer.
Additionally, the 6th and the 10th circuits have recently heard cases about the relevancy of the EEOC’s investigative subpoena. The 10th Circuit in Equal Employment Opportunity Comm’n v. TriCore Reference Labs., No. 16-2053, 2017 WL 743984 (10th Cir. Feb. 27, 2017) refused to enforce an EEOC subpoena to turn over names and personal information of employees that had requested accommodations for disabilities or for pregnancies. The investigation was based on a single charge by a former employee claiming she was denied adequate accommodation for her disability and pregnancy. The 6th Circuit in EEOC v. United Parcel Service Inc., 16-2132, is currently deciding whether to enforce a subpoena directed to United Parcel Service Inc. requesting extensive documentation that the employer believes is overly broad and irrelevant to the charge at hand.
The Supreme Court’s ruling in the McLane case will be one to watch in 2017 as it is poised to change the legal landscape. The comments made by the justices and the activity in the circuits about the EEOC’s use of the investigative subpoena suggest that McLane decision may expand beyond the scope of EEOC subpoena power and comment on whether the EEOC has just reached too far.•
• Laura M. Walker is an attorney at Lewis Wagner LLP and concentrates her practice in employment law. The opinions expressed are those of the author.