Supreme Court’s Decision in McLane v. EEOC Brings Standard of Review of EEOC Subpoenas in the Ninth Circuit in Line with All Other Circuits to Consider the Question.
As part of its authority to investigate charges of discrimination, the EEOC has the power to subpoena “the attendance and testimony of witnesses or the production of any evidence.” An employer may petition the EEOC to revoke a subpoena, but if the EEOC rejects the petition and the employer refuses to comply with the subpoena, the EEOC may seek an order from a district court to have the subpoena enforced. District courts generally will enforce an EEOC subpoena if the subpoena seeks material “relevant” to the charge, and the subpoena is not “too indefinite,” not issued for an “illegitimate purpose,” or is unduly burdensome. Nevertheless, there have been a good number of instances in which courts have refused to enforce subpoenas found to be excessive relative to the charges. In EEOC v. TriCore Reference Laboratories, 2017 WL 743984 (10th Cir. Feb. 27, 2017), for example, the Tenth Circuit affirmed a district court’s decision refusing to enforce an EEOC subpoena demanding names and personal information of many employees based on a single charge by a former employee.
McLane Co., a supply-chain services company, requires employees working in physically demanding jobs to pass a physical evaluation upon hiring and after returning from medical leave. Damiana Ochoa, a McLane employee working in a physically demanding job, failed the physical examination three times after returning from maternity leave and was fired. Ms. Ochoa filed a charge of sex discrimination, and the EEOC began investigating McLane. McLane produced anonymized data about physical evaluations of its employees, but did so without providing “pedigree information,” such as employee names, Social Security numbers, addresses, and telephone numbers. The EEOC subpoenaed this pedigree information but McLane refused to comply. The EEOC thereafter filed suit against McLane alleging both sex and age discrimination and sought to enforce its subpoena. The district court quashed the subpoena, holding that the pedigree information was not “relevant” to the charges. The Ninth Circuit reviewed the district court’s ruling de novo and reversed.
On April 3, in McLane Co. v. EEOC, No. 15-1248 (Apr. 3, 2017), the U.S. Supreme Court held that “a district court’s decision to enforce an EEOC subpoena should be reviewed for abuse of discretion, not de novo.” The Court emphasized that “the longstanding practice of the courts of appeals in reviewing a district court’s decision to enforce or quash an administrative subpoena,” such as those issued by the EEOC or NLRB, “is to review that decision for abuse of discretion.” That is because the enforceability of administrative subpoenas turns on “case-specific” factors of relevance and burden, which are “well suited to a district judge’s expertise.” The Court vacated the Ninth Circuit’s decision and remanded for review applying an abuse-of-discretion standard.
The Court’s decision resolves the split among circuit courts over the standard of review that applies to the enforceability of EEOC subpoenas: “[a]lmost every Court of Appeals reviews such a decision for abuse of discretion,” while “the Ninth Circuit alone applies a more searching form of review.” The Court’s ruling ensures that all circuit courts will apply “the same deferential review to a district court’s decision as to whether to enforce an EEOC subpoena.”