The US Supreme Court Limits Appellate Review Of District Court’s Refusal To Enforce Subpoenas Issued By The EEOC

The United States Supreme Court recently ruled that an appellate court must review a district court’s decision whether to enforce a subpoena issued by the EEOC under an abuse of discretion standard rather than de novo review which provided no deference to the district court’s decision.  McLane Co. v. the Equal Employment Opportunity Commission, 137 S. Ct. 1159 (2017).

Facts and Procedural Background

In McLane Co., the underlying charge of discrimination was filed by a former employee, Damiana Ochoa, who had worked on McLane’s physically demanding assembly line for eight years until she went out on maternity leave.  Just as McLane required of all its employees returning from medical leave, McLane required that Ms. Ochoa pass a physical evaluation before it would authorize her to return to work.  The evaluation “tests range of motion, resistance, and speed” and is “designed, administered, and validated by a third party.”  Ms. Ochoa failed the evaluation three times and McLane terminated her employment.  Thereafter, Ms. Ochoa filed a charge of discrimination with the EEOC alleging that she had been terminated on the basis of her gender.

McLane provided the EEOC with basic information about the evaluation, and an anonymous list of employees who had taken the evaluation.  However, McLane refused to provide “pedigree information,” specifically, the employees’ names, social security numbers, and last known addresses.  The EEOC then issued a subpoena requesting this information, but McLane continued to object.  The EEOC then filed an action in federal court to enforce the subpoena; however, the District Court refused to enforce the subpoena on the basis that the requested information was not relevant to the charge “because an individual’s name, or even an interview he or she could provide if contacted, simply could not shed light on whether the evaluation represents a tool of discrimination.”

The EEOC appealed to the Ninth Circuit.  Consistent with Ninth Circuit precedent, the District Court’s decision was reviewed de novo (i.e., without any deference).  As a result, the Ninth Circuit held that the District Court erred in concluding that the pedigree information was not relevant.  However, in its written decision, the Ninth Circuit panel questioned why the District Court’s decision should be reviewed de novo when the other Circuit courts “appeared to review issues related to enforcement of administrative subpoenas for abuse of discretion.”

Supreme Court Decision

The High Court granted certiorari for the sole purpose of resolving the issue of the proper standard of review by the appellate Circuit Court over the District Court’s decision of whether or not to enforce an EEOC subpoena.  The Court began its analysis by recognizing that, absent “explicit statutory command,” two factors generally guide the inquiry into the appropriate standard of review: (1) appellate precedent; and (2) whether “one judicial actor is better positioned than another to decide the issue in question.”  The Supreme Court ruled that both factors counseled in favor of abuse of discretion review.

First, prior to McLane, all federal Circuit Courts, except for the Ninth Circuit, reviewed a District Court’s decision of whether to enforce an administrative subpoena under an abuse of discretion standard rather than de novo review.  In its simplest terms, under an abuse of discretion standard, the Circuit Court can only overturn the District Court’s decision if the decision was based upon an erroneous view of the law or a clearly erroneous assessment of the evidence.  Under de novo review, the Circuit Court does not provide the District Court’s decision with any deference; rather the Circuit Court decides on its own whether the subpoenas should be enforced. The application of the abuse of discretion standard for review of a District Court’s decision regarding an administrative subpoena even predated the statute under which the EEOC had issued the subpoena in question in McLane, Title VII.  In rejecting the Ninth Circuit’s de novo standard of review, the Supreme Court reasoned that when Congress included provisions in Title VII which authorized the EEOC to issue subpoenas such as the subpoena in question, it did so against the uniform backdrop of abuse of discretion review.

As to the second factor, the Supreme Court began with the premise that deciding whether to enforce a subpoena issued by the EEOC turns on questions of relevance and whether providing the requested information is unduly burdensome.  Relevance requires the Court to compare the information requested by the EEOC’s subpoena against the scope of the charge of discrimination.  The burden imposed must be evaluated by the hardships the employer will need to overcome in order to produce the requested information.  The Court found both fact-intensive inquiries are better resolved by the District Court rather than the Court of Appeal.

What This Means for Employers

The Supreme Court’s decision in McLane confirms that unique issues of fact must be analyzed by employers and their counsel in determining whether certain information should be provided in response to a subpoena issued by the EEOC.  The scope of the charge of discrimination should always be at the forefront of any such investigation.  Where the EEOC’s subpoena ventures too far afield, an employer may be justified in refusing to indulge the EEOC’s fishing expedition.

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