Administrative agencies such as the Equal Employment Opportunities Commission (“EEOC”) and the Massachusetts Commission Against Discrimination (“MCAD”) often require detailed information about both current and former employees during their investigations of employment discrimination complaints. Employers are rightfully hesitant to provide such confidential and sensitive information due to privacy concerns, especially given the often informal requests submitted by the agencies. In addition, gathering such information can be significantly time consuming and costly.
For their own protection, employers are well-advised to insist that requests for personally identifiable information of employees be made via administrative subpoenas. At least in the case of the EEOC, the Supreme Court has held that the strict limitations imposed on the public disclosure of information produced in that way are sufficient to protect any privacy and confidentiality interests that are implicated. Just last week, in fact, the Ninth Circuit affirmed the EEOC’s subpoena power to require extremely detailed information about both past and current employees of the respondent.
Specifically, in EEOC v. McLane Co., Inc., the Court held that the employer had to produce the name, social security number, last known address, and telephone number of all of its employees in physically demanding positions nationwide who had been required to take a strength test either as a condition of initial employment or after a medical leave of absence, covering thousands of employees. The complaint was filed by a long term employee who, after taking maternity leave, was terminated because she had failed to pass this test despite retaking it three times.
In interpreting the provision of Title VII which gives the EEOC authority to obtain evidence that “is relevant to the charge under investigation,” 42 USC § 2000e-8(a), the Ninth Circuit stated that this standard sweeps more broadly than it would at trial and covers any information that might cast light on the allegations against the employer. The Court held that the information requested of McLane met this broad definition of relevance because it would allow the EEOC to contact other test-takers and interview them about their experience with the test, as well as any adverse employment actions that may have followed. As to the employees’ social security numbers, the Court held that they were relevant because they would allow the EEOC to accurately identify individual test takers in the data sets it had received from McLane.
As McLane clearly demonstrates, the subpoena power of the EEOC is broad and far-reaching. This fact should not suffice, however, for the agency to obtain sensitive personal information of employees with simply an informal request. Absent an administrative subpoena, employers should cautiously redact any sensitive employee information in responding to such requests in order to protect themselves from privacy and confidentiality claims.