From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
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.
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 email@example.com
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)