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Another Chapter in When the EEOC Comes Knocking…

In this case, McLane’s employee (Ochoa) returned from a three month maternity leave but could not pass a physical examination to return to work.  After failing that physical examination three separate times, she was fired, and filed a Title VII sex discrimination charge with the EEOC.

An EEOC investigation followed into her charge, with a request to McLane for so-called “pedigree” information seeking the names, addressed, phone numbers and social security numbers of all persons asked to take the evaluation.  Not content to focus on the former employee’s own charge, the EEOC expanded the scope of the investigation to cover McLane’s nationwide operations and included a claim for age discrimination. McLane refused to voluntarily provide the pedigree information. The EEOC issued subpoenas and when McLane refused to provide the “pedigree” information, the EEOC sued to enforce its subpoenas. The District Court declined to enforce the subpoenas, finding the pedigree information was not relevant to the charges. The Ninth Circuit reversed, and the case went to the U.S. Supreme Court.

The Supreme Court ruled in a 7-1 decision that the decision of the District Court should be given substantial deference, applying an abuse of discretion standard. This is the standard of review generally common to all administrative subpoenas, not just EEOC subpoenas. McLane Co., Inc. v. EEOC (April 3, 2017)

What are the lessons from this opinion?

First, an employer objecting to an  EEOC subpoenas should expect to win or lose at the trial court level. Except in rare cases, the decision will not be overturned on appeal. (For example, if the District Court had ruled against McLane, under the abuse of discretion standard, McLane would not successfully changed that decision on appeal.) The employer needs to present all objections – lack of relevance, privacy, and burden – and supporting evidence in the trial court. While the EEOC subpoena is satellite litigation, the outcome in the trial court will almost always be the final outcome.

Second, the Supreme Court noted that EEOC subpoenas are “case specific” and does not “turn on a neat set of legal rules” but rather requires the application of broad standards to “multifarious, fleeting, special, narrow facts that utterly resist generalization.” It further noted that objections based on subpoenas being overly burdensome are “generally not amenable to broad per se rules” and are typically “fact intensive close calls.”   These statements provide strong authority for employers to object to overbroad and unduly burdensome subpoenas, when appropriate. Consider the client and the burden issues carefully. For small businesses and non-profits, EEOC subpoenas are usually burdensome. This usually means little to the EEOC, but is likely  to be more important to a District Court judge who rules on issues of overly broad and unduly burdensome discovery with regularity.

This communication may be considered advertising in some jurisdictions. It is intended to provide general information about legal developments and is not legal advice. If you have questions about the contents of this alert, please contact Peter Glaessner at (415) 697-2000 or .