Justices to Hear Debate on Review Standard for EEOC Probes

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By Kevin McGowan

The scope of EEOC investigations into discrimination charges against companies will have its day before the U.S. Supreme Court Feb. 21 ( McLane Co. v. EEOC, U.S., No. 15-1248, oral argument scheduled 2/21/17 ).

The high court’s decision is relevant to the Equal Employment Opportunity Commission and potentially for other federal agencies—including the National Labor Relations Board—that investigate employers, unions and employment agencies and may seek to enforce their own subpoenas in federal court.

The justices will hear McLane Co.’s challenge to a federal appeals court decision that said the EEOC could obtain Social Security numbers and other personal contact information of company workers who were required to take physical ability tests before returning to work.

A federal district court had blocked the EEOC’s subpoena, agreeing with McLane that the requested information wasn’t relevant to a former employee’s sex discrimination charge against the company.

The Supreme Court granted review on a narrow issue: whether the Ninth Circuit erred by not giving appropriate weight to the district court’s decision on whether to enforce the EEOC subpoena. Justices’ questions probably will focus more on the procedural issue of the appropriate standard of appellate review rather than the merits of the EEOC subpoena.

Ninth Circuit Stands Alone

The U.S. Court of Appeals for the Ninth Circuit said “de novo” review—a fresh look at the facts and law regardless of the lower court’s decision—was the standard of review.

Every other federal appeals court to rule on the issue, however, has said the decision to enforce or quash an agency subpoena should be reversed only if the lower court abused its discretion by applying an incorrect legal standard or making a clear factual error.

The EEOC in its brief contended that even if the more deferential standard of review is applied, the district court erred by denying the commission access to the McLane workers’ contact information.

McLane had given the EEOC lists of workers who had to take the physical abilities test, categorized by gender, and their test results. But it didn’t identify the workers by name or provide any other personal information.

The data sought by the EEOC are relevant to the pending discrimination charge, and it wouldn’t be unduly burdensome for McLane to produce the data, the agency argued.

If the justices decide the Ninth Circuit erred, a remand to the appeals court to reconsider whether the EEOC subpoena can be enforced is the most likely outcome.

The high court in 2016 ruled the Eighth Circuit used an incorrect standard when it denied attorneys’ fees to an employer who largely succeeded in beating an EEOC discrimination lawsuit. Rather than decide the issue itself, the Supreme Court remanded for the Eighth Circuit to determine if the employer was entitled to fees under a correct standard.

Attorneys representing McLane declined to comment in advance of the oral argument.

Morgan Lewis & Bockius represents McLane before the Supreme Court. The Justice Department represents the EEOC.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

For More Information

Text of the EEOC's brief is available at http://src.bna.com/mjt , McLane's reply brief is at http://src.bna.com/mjr.

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