Business groups urge Supreme Court to OK narrower review of EEOC subpoena rulings

December 8, 2016

A general view of the U.S. Supreme Court building in WashingtonAppellate courts should defer to trial court decisions regarding subpoena requests by the Equal Employment Opportunity Commission, several business groups and law professors say in two amici briefs recently filed in the U.S. Supreme Court.

A trial court has conducted hearings, heard witness testimony, and “is the closest to the factual and evidentiary issues at play,” so a more thorough de novo review is unnecessary, the business groups say in a Nov. 21 brief.

In September the Supreme Court agreed to hear food distributor McLane Co.’s challenge to the 9th U.S. Circuit Court of Appeals’ reversal of a lower court ruling and approval of the EEOC’s subpoena seeking personal information of other company employees in its investigation of a worker’s sex discrimination claim.

The company has asked the high court to determine the proper standard of review of a court’s ruling in an EEOC administrative action, noting that the 9th Circuit is the only appellate court to conduct a de novo review instead of a narrower or more deferential review for clear legal error only. De novo review requires the appellate court to determine if the trial judge has misconstrued the law, while a clear-error review determines if the judge made an obvious error in deciding the facts.

Relevant and necessary info

The case came before the 9th Circuit after the U.S. District Court for the District of Arizona refused to enforce an EEOC subpoena against McLane seeking information related to the company-mandated employee strength test. EEOC v. McLane Co., No. 12-2469, 2012 WL 5868959 (D. Ariz. Nov. 19, 2012).

Damiana Ochoa filed a sex discrimination claim with the EEOC against McLane in 2008 after she was fired for failing to pass a physical capability test following her maternity leave.

She alleged the company violated Title VII of the Civil Rights Act, 42 U.S.C.A. § 2000e, by discriminating against her based on her gender when it terminated her employment.

In investigating Ochoa’s claims, the EEOC asked the company for information about the test and the employees who have taken it.

McLane provided some general information, including the gender and test scores, but refused to provide “pedigree information” — names, addresses, Social Security numbers and phone numbers — of the test takers. It also refused to provide information about when and why it had terminated employees who failed the test, according to 9th Circuit opinion.

The EEOC filed a subpoena enforcement action against the company in Arizona federal court in 2012.

U.S. District Judge G. Murray Snow required McLane to provide some additional information but said the pedigree information was not necessary for the agency to determine if the company used the strength test in a discriminatory way.

The EEOC appealed, and the 9th Circuit panel reversed in part and vacated in part, finding the requested information relevant to the agency’s investigation. EEOC v. McLane Co., 804 F.3d 1051 (9th Cir. Oct. 27, 2015).

“At the investigative stage, the EEOC is trying to determine only whether ‘reasonable cause’ exists ‘to believe that the charge is true,’” the panel said. “So the relevance standard in this context sweeps more broadly than it would at trial.”

Irrelevant info

In its petition for certiorari filed with the Supreme Court in April, McLane argued that the information the EEOC sought on other employees was irrelevant to its investigation since Ochoa had not compared the company’s treatment of her to the treatment of other workers.

By allowing the commission broad subpoena powers to collect material, the 9th Circuit essentially nullified limits that Title VII places on the EEOC’s jurisdiction, the petition said.

Opposing the company’s petition, the EEOC said the appeals court properly conducted a de novo review of Judge Snow’s subpoena decision because the panel found legal error. The panel determined that the judge erred in ruling that the commission did not need certain information to establish if the company’s strength test was discriminatory, the EEOC said.

‘Abusive investigative tactics’

The Chamber of Commerce, Equal Employment Advisory Council and National Federation of Independent Business Small Business Legal Center said in their brief supporting McLane that de novo review of subpoena decisions would only prolong the EEOC’s already lengthy process that often includes “abusive investigation tactics,” the brief says.

“The EEOC often demands as part of investigation of even the most straightforward individual claim, voluminous information that has no relevance to the charge under investigation in an effort to ‘fish’ for possible targets for systemic enforcement,” the groups say.

In a separate brief filed Nov. 21, law professors who teach and write about federal procedure and administrative law said they also support a deferential review of trial court subpoena decisions.

The professors “regard the allocation of adjudicative responsibilities to the different federal courts based on their institutional competencies to be of paramount importance,” the brief says.

The professors note that the 9th Circuit is the only circuit to follow the de novo review standard on such decisions, and they say the high court must “unify” all of the circuits in deferring to a trial court.

“In resolving this case, the court’s guidance will transcend the specific context of EEOC subpoenas,” the professors say.

McLane Co. v. Equal Employment Opportunity Commission, No. 15-1248, amici brief filed (U.S. Nov. 21, 2016).

McLane Co. v. Equal Employment Opportunity Commission, No. 15-1248, amici brief filed (U.S. Nov. 21, 2016).