Law360

President-elect Donald Trump’s election injects uncertainty into the U.S. Supreme Court's makeup and its future rulings, including for employment-related cases. Because the U.S. Senate has not held confirmation hearings on Merrick Garland, President Barack Obama’s pending nominee, Trump will have the opportunity to nominate a new justice. Considering the advanced age of several other members of the court — particularly Justices Ruth Bader Ginsburg (83), Anthony Kennedy (80), and Stephen Breyer (78) — there is a significant likelihood that Trump will have at least one additional nomination.

The election results also guaranteed that Republicans will narrowly retain a majority in the Senate. They enter the next congressional term controlling 52 seats, following the recent Louisiana runoff election on Dec. 10. This result will significantly shape the debate over the coming Supreme Court nomination. The rules of the Senate still allow for a filibuster of a judicial nomination, which, if exercised, would prevent a vote on the nominee unless 60 senators voted in favor of proceeding. However, Republican control of the chamber significantly enhances the prospects for approval of the president elect’s preferred nominee.

In September, Trump released a list of 21 potential nominees, including Judge William Pryor of the Eleventh Circuit. Any nominee from this list would likely tilt the court in a conservative direction. A Trump appointee would immediately affect the court’s decisions in a number of significant labor and employment cases in the upcoming term.

Among the cases to watch before the Supreme Court is McLane v. EEOC out of the Ninth Circuit. The McLane case asks the court to resolve a circuit split on the proper standard of review applied to a district court decision to quash or enforce a U.S. Equal Employment Opportunity Commission subpoena. The Ninth Circuit has used a de novo standard of review, while eight other circuits have held that the district court decision should be reviewed with deference.

Damiana Ochoa filed an EEOC charge alleging pregnancy discrimination against McLane Company, a grocery supply chain company and her former employer. When Ochoa returned from medical leave after the birth of her child, McLane required her to take a physical strength examination that it administered to employees who were newly hired or returning from medical leave and assuming positions considered physically demanding. As part of its investigation into Ochoa’s charge, the EEOC subpoenaed McLane for personal identifier information (also known as “pedigree information”) and McLane’s reasons for terminating any employee who had undergone the physical strength examination.

Although the EEOC initially began its investigation at the Arizona subsidiary where Ochoa worked, it eventually expanded its scope and sought information about McLane’s facilities nationwide about more than 20,000 employees at several dozen distribution centers. The EEOC also sought information about age, even though Ochoa did not raise an age claim and was under age 40. (The Age Discrimination in Employment Act only prohibits age discrimination against employees older than 40.)

McLane provided the EEOC with each test taker’s gender, job class, reason for taking the test and score received. It refused, however, to provide information regarding termination, and the EEOC sought enforcement of the subpoena in the Arizona district court. The EEOC initially sued only to enforce the ADEA subpoena. The trial court accepted the EEOC’s argument that it was seeking to determine whether the physical evaluation was a systematic tool of age discrimination and ruled that the inquiry warranted nationwide company information. The EEOC sided with McLane, however, finding that requiring contact information and specific reasons as to why particular employees were terminated was unduly burdensome. The court additionally ordered McLane to hand over information about employees who suffered an adverse employment action within 90 days of participating in the physical strength evaluation.

On appeal, the Ninth Circuit reversed and vacated part of the trial court’s ruling after reviewing it de novo. In September of 2016, the Supreme Court granted certiorari to determine whether an appeals court should review de novo the district court’s determination on whether to enforce an EEOC subpoena.

Now is an opportune time to brush up on the EEOC’s authority to obtain employer information. Title VII authorizes that the EEOC “shall at all times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to [covered] unlawful employment practices.” The EEOC will initially submit a request for information in response to an employer’s position statement, its first response to a charge of discrimination. An employer may object to these requests, much like a formal subpoena, on the basis of scope. If a request is overly broad in terms of geography, time, or otherwise seeks information on employment practices or events unrelated to the charging party’s allegations, an employer should seek to narrow the information provided.

With respect to investigations conducted under Title VII, the Americans with Disabilities Act or the Genetic Information Nondiscrimination Act, the EEOC is limited to the allegations in the charge. This narrowed authority is a primary difference between the EEOC and other agencies such as the U.S. Department of Labor. The EEOC does, however, have the authority to pursue investigations outside of individual charges with regard to suspected violations of the Age Discrimination in Employment Act.

If an employer believes an EEOC’s subpoena is objectionable and refuses to comply with it, the employer should anticipate that the EEOC will file suit in federal court seeking enforcement of the subpoena. Typically, the EEOC asks the employer to show cause as to why the subpoena should not be enforced. District courts typically examine EEOC subpoenas to determine whether the investigation is within the EEOC’s authority, whether the agency’s demand is too broad, and whether the EEOC is seeking information that is reasonably relevant to its investigation. The EEOC must meet its burden as to each of these factors. Even if it does, an employer may still prevail if it establishes that enforcement of the subpoena would be unduly burdensome.

Employers might view this election as a win, given the likely change in composition to the Supreme Court and the influence it could have on the McLane ruling. District courts more frequently review challenges to EEOC subpoenas and are less likely than appellate courts to perceive the EEOC as a neutral investigative agency. The more deference given to district court determinations as to EEOC subpoenas, the more likely the EEOC will have to tailor their requests to the matter under investigation.

Republished with permission. This article first appeared in Law360 on December 19, 2016.