EEOC v. McLane Co., 857 F.3d 813 (9th Cir. 2017) 

Damiana Ochoa filed a charge with the EEOC alleging sex discrimination (based on pregnancy) in violation of Title VII, when, after she tried to return to her job following maternity leave, her employer (McLane Co.) informed her that she could not come back to the position she had held for eight years as a cigarette selector unless she passed a physical strength test. Ochoa took the test three times but failed to pass and, as a result, her employment was terminated. McLane disclosed that it administers the test to all new applicants and to employees returning from a leave that lasts more than 30 days. Although McLane voluntarily provided general information about the test and the individuals who had been required to take it (gender, job class, reason for taking the test and the score received), it refused to disclose “pedigree information” for each test taker (name, social security number, last known address, telephone number and the reasons why particular employees were terminated after taking the test).

In this EEOC subpoena enforcement action, the district court refused to compel production of the pedigree information, but the United States Court of Appeals for the Ninth Circuit (in an earlier opinion) reversed that order following a de novo review of the lower court’s order. The United States Supreme Court then vacated and remanded the judgment of the Ninth Circuit, holding that the district court’s decision to quash or enforce an EEOC subpoena should be reviewed under the more deferential abuse of discretion standard. In this latest opinion, the Ninth Circuit held that the district court had indeed abused its discretion when it denied enforcement of the EEOC’s subpoena and once again vacated the district court’s order, remanding the matter back to the district court.