More and more it seems disputes are occurring over what information the EEOC may subpoena from employers. On April 3, 2017, the U.S. Supreme Court issued its ruling in McLane Co. v. EEOC, weighing in on the standard of review on appeal when district courts either enforce or quash an EEOC subpoena.
Before discussing the case, let’s first address how we get to an appeal of such an issue:
- A charge is filed with the EEOC.
- As the EEOC investigates the charge, it will frequently request information from the employer.
- In the event that the employer objects to providing the information, the EEOC has the authority to subpoena from employers “relevant” information.
- The employer may resist the subpoena by filing a petition for review with the EEOC.
- If this petition is denied, and the employer still refuses to provide the requested information, the EEOC may seek to enforce the subpoena by filing an action to enforce with a federal district court.
- The district court then decides whether or not to enforce the subpoena by determining if the documents requested are “relevant” to the charge currently under investigation; the EEOC does not have plenary authority to issue a subpoena that goes beyond such “relevant” information.
- The losing party may appeal the district court’s determination.
In McLane, the Supreme Court addressed what deference an appeal court should provide to the district court’s decision. The case involved a gender discrimination claim filed by a former employee of McLane whose duties included manual labor. When the employee returned from a three month maternity leave, she was required to take a physical evaluation consistent with McLane’s policy. The employee failed the evaluation three times and was eventually fired.
In the course of its investigation, the EEOC requested information concerning the physical evaluation. Although McLane provided the EEOC with a list of each employee who took the evaluation and their gender, role, score, and reason asked to take the evaluation, McLane refused to provide the “pedigree information” (names, Social Security numbers, last known addresses, and telephone numbers) of the applicants and employees nationwide.
The district court refused to order the production of pedigree information, holding that it “simply could not shed light” on whether the evaluation represented systemic gender discrimination. The Ninth Circuit reviewed the district court’s decision de novo and reversed it, finding that the pedigree information was relevant to the alleged gender discrimination.
But in a 7-1 ruling, the Supreme Court vacated the Ninth Circuit decision. Writing for the majority opinion, Justice Sonia Sotomayor stated that a decision to enforce an EEOC subpoena is a case-specific one and involves “the application of broad standards to ‘multifarious, fleeting, special, narrow facts that utterly resist generalization.’” Thus, they are “the kind of ‘fact-intensive, close calls’ better suited to resolution by the district court than the court of appeals” and should be reviewed for abuse of discretion. The Court also considered district courts’ extensive experience with similar decisions, such as determining the relevance of evidence at trial.
Additionally, the Court noted that its decision does not establish a double deference scheme, because a district court does not need to defer to the EEOC’s decision in determining whether evidence is relevant under Title VII.
McLane is important for employers because it recognizes three points: (i) a district court need not give deference to the EEOC determination of what is relevant and what is not; (ii) decisions to enforce EEOC subpoenas do not turn on “a neat set of legal rules,” but are case-specific, and should be subject to a fact-intensive review; (iii) more weight will be given to the district court’s judgment in enforcing or quashing EEOC subpoenas.