What’s the Scope of EEOC Subpoenas? Justices Hear Lively Debate

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...

By Kevin McGowan

U.S. Supreme Court justices didn’t tip their hand on how they might decide an employer’s challenge to an EEOC subpoena seeking employees’ personal contact information as part of a sex bias investigation ( McLane Co. v. EEOC, U.S., No. 15-1248, oral argument 2/21/17 ).

Employer representatives are watching the case closely because it has “mushroomed” from being solely about the procedural standards of review to one raising the permissible scope of EEOC subpoenas, Nicole Eichberger, a Proskauer Rose partner in New Orleans who represents employers, told Bloomberg BNA Feb. 21.

The case’s significance could turn on how much the court ultimately writes about the limits on EEOC information requests, said Rae Vann, a partner with NT Lakis LLP in Washington who is general counsel of the Equal Employment Advisory Council, an employers’ association. The EEAC, along with the U.S. Chamber of Commerce and the National Federation of Independent Business, filed an amicus brief supporting McLane Co.

Vann was pleasantly surprised the justices paid considerable attention at argument to the facts of McLane’s case and what “relevance” means in the EEOC subpoena context, she told Bloomberg BNA Feb. 21.The Supreme Court appears poised to adopt the abuse of discretion standard for appellate review. But how much of its decision will discuss the EEOC-specific issues remains to be seen, Eichberger said.

Deference to District Court Decisions

Most of the justices who spoke at oral argument seemed receptive to a holding that appeals courts shouldn’t overturn district court decisions on whether to enforce or quash EEOC subpoenas unless the lower court applied an incorrect legal standard or made clear factual errors.

Justice Ruth Bader Ginsburg suggested that even if the U.S. Court of Appeals for the Ninth Circuit had applied an abuse of discretion standard, the district court still erred in holding the EEOC couldn’t show that McLane Co.'s personal contact information was relevant to the agency’s sex bias probe.

Ginsburg’s remarks signaled she could decide that even if the Ninth Circuit erred in its review standard, an EEOC subpoena demanding that McLane provide contact data for more than 14,000 employees nevertheless should be enforced.

No other justice verbally supported Ginsburg’s suggestion, Eichberger said.

EEOC, Employer Partly Agree

The case is unusual because McLane and the EEOC both argue the Ninth Circuit erred by reviewing from scratch the district court’s decision to deny subpoena enforcement. They both asked the justices to rule “abuse of discretion” is the proper appellate review standard.

But the parties split on how that rule applies in McLane’s case. Lawyer Allyson Ho, representing the company, argued it means the justices must reverse and remand the Ninth Circuit’s decision that the district court improperly quashed the EEOC subpoena.

Rachel Kovner, assistant to the solicitor general, argued that even under an abuse of discretion rule, the Ninth Circuit appropriately reversed the district court.

Under any standard, the EEOC’s request that McLane provide the names and Social Security numbers of workers who took a physical abilities test is relevant to a fired female employee’s sex bias charge, Kovner told the court.

Ninth Circuit Defended

Appellate courts should use “de novo” review on subpoena enforcement decisions, argued Stephen Kinnaird, a private attorney whom the Supreme Court appointed to defend the Ninth Circuit’s position.

Congress gave the EEOC alone the “discretion” to decide if requested information is relevant to a discrimination charge under Title VII of the 1964 Civil Rights Act, Kinnaird said. There’s no “double discretion” residing with the district court, he said.

The appeals court therefore should review from scratch if a district court overstepped its boundaries by denying the EEOC access to information the agency deems relevant, Kinnaird argued.

Necessity the Wrong Standard

The relevance of requested information under the federal anti-discrimination laws is linked to a specific EEOC charge, Ho said, so it’s necessarily within a district court’s fact-finding expertise.

Kovner also said a district court is best positioned to question the EEOC and employer and decide if an agency subpoena fits within the broad relevance standard.

But it’s also “entirely appropriate” for the Supreme Court to affirm the Ninth Circuit’s result and require McLane to produce the “pedigree information,” the term of art referring to employees’ personal contact data, Kovner said.

The district court used an incorrect legal standard by requiring the EEOC to show the requested information was necessary, not simply relevant, to the sex bias charge, Kovner said. No remand is required to find the district court abused its discretion, she said.

A “necessity test” is an “incorrect understanding of relevance,” Kovner said.

Details of the Probe Discussed

The justices questioned the details of the EEOC subpoena, as well as McLane’s response.

The company gave the EEOC a list of some 14,000 test-takers, along with their genders, test results and whether any “adverse employment action” occurred within 90 days of completing the tests, Ho said.

But that information doesn’t indicate if the “adverse” action was a firing and the reason for such action, Justice Sonia Sotomayor said.

That seems to support the EEOC’s view the contact information is relevant so the agency could interview test-takers to see if workers who failed were treated differently based on gender, Sotomayor said.

Justice Stephen Breyer said relevance is an extremely broad concept that could justify almost any EEOC information request.

Only one former McLane employee charged discrimination, but the EEOC subsequently demanded contact information for thousands of employees, Breyer said.

The EEOC made its requests in stages, Kovner said. It didn’t seek the more expansive data until McLane said it had a nationwide policy of terminating employees if they couldn’t pass the physical abilities test, she said.

The EEOC subpoena for personal contact information is relevant because only interviews could show if McLane uniformly enforced its asserted policy or treated test-takers differently based on gender, Kovner said.

Breyer Takes a New Tack

Breyer asked if the EEOC’s request to McLane could be deemed unduly burdensome.

That issue isn’t before the Supreme Court. Kovner replied. McLane challenged only the appellate review standard and the relevance of the pedigree information, she said.

Breyer’s questions are interesting because they suggest that “disproportion” between an EEOC charge and the agency’s information request might tilt against enforcement, said Eichberger of Proskauer Rose.

But Sotomayor and Justice Samuel Alito each asked why McLane didn’t simply hand over the personal contact information to the EEOC because it wasn’t difficult to access that data, Eichberger said.

Employers would benefit if the Supreme Court gives some guidance on how to measure relevance, proportionality and burdens in the EEOC subpoena context, Eichberger said.

The final decision on whether this EEOC subpoena can be enforced likely will be made by a lower court on remand from the high court, she said.

Ho is a partner with Morgan Lewis & Bockius in Dallas. Kovner is with the Justice Department in Washington. Kinnaird is a partner with Paul Hastings in Washington.

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 oral argument transcript is available at http://src.bna.com/mmF .

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law