Supreme Court Clarifies Standard for Reviewing EEOC SubpoenasPDF
On April 3, the Supreme Court ruled that trial court decisions to enforce or quash subpoenas issued by the Equal Employment Opportunity Commission should be reviewed only for abuse of discretion, and not under the lower, more sweeping “de novo” standard. The 7-to-1 decision, McLane Co., Inc. v. EEOC, overturned a contrary ruling by the Ninth Circuit Court of Appeals and brings that circuit in line with others that have considered the issue.
EEOC Subpoenas Nationwide Information in Response to Individual Discrimination Charge
The case involved the EEOC’s investigation into a charge of sex discrimination against McLane, a supply chain services company, filed by one of its former employees, Damiana Ocha, who McLane employed as a “cigarette selector.” McLane requires new and returning employees in this position to pass fitness exams. Ocha was fired when she returned from maternity leave and was repeatedly unable to pass the exam. She then filed a charge with the EEOC alleging sex discrimination under Title VII of the Civil Rights Act of 1964.
As part of the EEOC’s investigation into the charge, McLane agreed to provide information about the exam and the employees at Ocha’s location required to take it, including their gender, job title, reason for taking the exam and the score received. McLane, however, redacted what it called “pedigree” information that identified the employees, such as their names, social security numbers and contact information.
The EEOC pressed for more and issued subpoenas for pedigree information for employees who took the exam at the plant where Ocha worked. It then expanded its investigation, subpoenaing pedigree information for more than 14,000 McLane employees across the nation. McLane objected to both subpoenas, arguing the information was irrelevant to the charge and would be overly burdensome to produce. The EEOC, however, refused to revoke or modify the subpoena and petitioned the U.S. District Court for the District of Arizona to enforce the subpoena.
Trial Court Quashes Subpoenas; Ninth Circuit Reverses
The District Court refused to enforce the EEOC’s subpoenas to the extent they sought pedigree information, ruling that such information was not relevant to the charge of sex discrimination. It determined the EEOC could assess whether McLane’s exams were discriminatory without the pedigree information and that the EEOC was actually requesting this information so it could go “trolling” for potential plaintiffs.
On appeal, the Ninth Circuit reversed. Though most trial court rulings on subpoenas and other discovery are reviewed only for abuse of discretion, the Ninth Circuit held it could review rulings on EEOC subpoenas “de novo,” without any deference to the trial court. It then held that the EEOC’s demand for pedigree information was relevant to Ocha’s charge. In doing so, it applied a sweeping standard that defines as relevant “virtually any material that might cast light on allegations against the employer.”
Supreme Court Limits Appellate Review
The Supreme Court overturned the Ninth Circuit, holding that it had gone too far by applying de novo review and that trial courts’ decisions whether to enforce EEOC subpoenas should be reviewed only for abuse of discretion. The Court’s opinion, drafted by Justice Sotomayor, identified several reasons why abuse of discretion is the proper standard of review.
First, the Court noted that every other circuit to consider the issue—including the Fourth Circuit—had applied this more deferential standard. In particular, the Court cited a footnote in the Ninth Circuit’s opinion in which one of its judges lamented, “Why we review questions of relevance and undue burden de novo is unclear.”
Second, the Court reasoned that trial judges, who are closer to the facts of the case, are better positioned than appellate judges to make decisions regarding relevance and burden and have the institutional advantage in doing so. The Court noted that such determinations turn on fact-intensive “close calls,” which cannot be reduced to per se rules that apply neatly to all situations. The Court likened decisions on EEOC subpoenas to other situations—such as evidentiary and discovery disputes—in which trial courts’ decisions are given great deference.
The primary effect of McLane likely will be greater consistency, as courts of appeal across the country—including those in the Ninth Circuit, which covers California and eight other states—will all apply the same standard to trial court decisions regarding EEOC subpoenas. The decision also stresses the importance of trial court proceedings for employers seeking to challenge EEOC subpoenas. Given the deference trial courts receive under the abuse of discretion standard, it is unlikely those decisions will be overturned on appeal.
In addition, at least one passage in the opinion may give employers greater room to push back on overreaching EEOC subpoenas. As part of the case, several interested groups, known as amicus curiae, argued that trial courts should be required to defer to the EEOC’s determination as to what evidence is relevant to its investigation. The Court, however, rejected that position. While it reiterated that the definition of “relevance” is broad, it expressly held that a trial court “need not defer to the EEOC’s decision” when determining whether information sought by a subpoena is relevant. Thus, the mere fact that the EEOC wants the information should not affect a trial court’s decision whether or not it is warranted. Instead, the trial court should engage in an independent review.
While McLane addresses primarily technical, procedural issues, the case highlights the importance of mounting a full challenge to overbroad requests from the EEOC early, at the trial level. Those proceedings are likely to be an employer’s only opportunity to obtain a full, independent review of an EEOC subpoena, and a favorable ruling there is likely to stand on appeal.
For more information regarding the EEOC, subpoenas or the McLane decision, please contact a member of Robinson Bradshaw’s Employment and Labor Practice Group.