In EEOC v. McLane, the Ninth Circuit held that an employer must comply with an EEOC subpoena seeking “pedigree information” (name, social security number, last known address, and telephone number) for all employees relevant to the EEOC’s investigation into claims of Title VII violations by a former employee.
Damiana Ochoa filed a charge with the EEOC for pregnancy discrimination against McLane Company, for whom she worked at a subsidiary as a cigarette selector. The position required the employee to pass a strength test, which Ochoa failed three times after returning from maternity leave. McLane then terminated her employment. The company asserted that it requires all new employees and those returning from leave to pass the test, in response to which the EEOC demanded more information – namely, who was really taking (and passing or failing) the test. As part of its investigation, the EEOC wanted to reach out to those who had taken the test, and therefore needed their pedigree information. Citing privacy concerns, the employer refused to provide more than coded information (substituting names and social security numbers with specially-created ID numbers). The EEOC filed a subpoena enforcement action in district court, and the court declined to order the production of pedigree information. The Ninth Circuit reversed and, having weighed McLane’s interest in limiting the disclosure of highly sensitive personnel identification data against the EEOC’s investigation needs, ordered the production.
This decision is a reminder of the significant reach of the EEOC’s subpoena power in connection with its investigations of workplace discrimination.