Testing the Limits of Employee Privacy: Ninth Circuit Allows EEOC To Obtain Extensive Personal Information About Employees Despite Privacy Concerns


The Ninth Circuit recently held that during the course of an investigation, the EEOC can force employers to produce “pedigree information” (i.e., name, telephone number, address, and Social Security number) of applicants and workers other than the charging party if the information is relevant to the underlying investigation.

In EEOC v. McLane, plaintiff was terminated after she failed a strength test, which the company required as a condition of her return to work from maternity leave.  She filed an EEOC charge alleging gender discrimination.  The EEOC eventually expanded the scope of its investigation to include all McLane facilities nationwide within the same division as plaintiff because the challenged strength test was used in all those facilities.  During the course of its investigation, the EEOC asked McLane to provide information regarding the strength test and the employees who had been required to take it.  McLane complied with most of the EEOC’s requests, providing each test taker’s sex, job class, reason for taking the test, and test score.  It refused only to provide employee pedigree information and the grounds for its decision to terminate workers who took the test.  McLane argued that the information was not relevant to the EEOC’s investigation.  The EEOC issued an administrative subpoena and brought an enforcement action.  The trial court, however, refused to enforce the subpoena agreeing with McLane that the EEOC did not need the information to issue a determination on the underlying charge.

On appeal, the Ninth Circuit held that the pedigree information and information regarding the reasons for the employee terminations were relevant to the EEOC’s investigation of the underlying charge.  It ordered McLane to produce the pedigree information and remanded for the trial court to determine whether production of information regarding the employee terminations would be unduly burdensome (the Ninth Circuit pointed out that McLane did not make a burdensomeness objection as to the pedigree information).

In so ruling, the court rejected the employer’s contention that the requested information was not necessary.  The court observed that “the governing standard is not ‘necessity’; it is relevance.”   During an investigation, the EEOC is trying to determine whether reasonable cause exists to believe discrimination occurred.  As such, the court held that “the relevance standard in this context sweeps more broadly than it would at trial [and] encompasses ‘virtually any material that might cast light on the allegations against the employer.’”

Against this broad reading of relevance, the court ordered McLane to produce Social Security numbers, which the EEOC argued it needs to accurately identify test takes from the data sets it received from the company.  The court rejected McLane’s arguments that the disclosure of those numbers present a host of privacy concerns and are unnecessary as it has already provided employee identification numbers.  Although the court addressed McLane’s objections based on employee privacy, McLane raised it only in a footnote, and the Court did not give it much weight.

Judge Milan D. Smith concurred in the majority opinion, but wrote a separate concurring opinion to address the significant and very real privacy concerns he sees with the EEOC’s request for Social Security numbers especially given the “government’s dismal performance in protecting even its own employees’ sensitive data.”  He cautions that the “EEOC’s insistence here on obtaining Social Security Numbers and other information that could be used to steal an employee’s identity will endanger the very employees it seeks to protect.”

Because of the decision employers are likely to see the EEOC step up its information requests during the investigative stage, particularly where the EEOC is challenging a uniform policy or practice that is applied across facilities nationally, as was the case in McLane.  However, employers still have an obligation to protect the privacy rights of their employees, particularly in states such as California with particularly robust state law privacy protections.  The decision did not give much consideration to employee privacy rights, perhaps given the fact that it was referenced by the defendant only in footnote.  Even when the EEOC pursues such information, employers should be careful to guard the private personal information of employees who are not parties to the EEOC charge.