In a recent oral argument before the U.S. Supreme Court, the justices considered a narrow procedural issue that could have broader implications for the subpoena power of the U.S. Equal Employment Opportunity Commission (“EEOC”).
At issue in McLane Company, Inc. v. EEOC is the standard of review applicable to district court decisions in proceedings brought to compel compliance with EEOC subpoenas issued in administrative investigations. While all the other circuits to have considered the issue have applied an abuse-of-discretion standard, the Ninth Circuit held that such decisions are subject to de novo review.
The case arose when Damiana Ochoa filed a charge with the EEOC alleging sex discrimination based on pregnancy after she was terminated from her employment with a McLane Company, Inc. (“McLane”) subsidiary in Arizona. Ochoa alleged that she was required to pass a physical strength test following her maternity leave and terminated after failing the test three times.
In an expansive investigation of Ochoa’s charge, the EEOC sought identifying “pedigree” information for thousands of other test takers from McLane facilities nationwide, including names, social security numbers, addresses, and telephone numbers. McLane refused to turn over the pedigree information. The EEOC issued an administrative subpoena for the information and then filed a subpoena enforcement action. However, the district court refused to require McLane to produce the pedigree information, concluding that the information was not relevant because the EEOC did not need it to determine whether McLane had used the test to discriminate on the basis of sex.
On appeal, a Ninth Circuit panel reviewed the district court’s relevance determination de novo, even though the panel acknowledged that its reason for applying this standard of review, when other circuits apply an abuse-of-discretion standard, was “unclear.” The Ninth Circuit reversed the district court’s ruling, concluding that the pedigree information was relevant because the EEOC could use it to contact other McLane employees to gain information about their experiences with the test that might bear on Ochoa’s allegations. The Supreme Court granted certiorari on the issue of the appropriate standard of review.
Notably, at the Supreme Court, both McLane and the EEOC argued that abuse of discretion is the appropriate standard, but the EEOC nevertheless contended that the Ninth Circuit should be affirmed because the district court’s refusal to enforce the subpoena rested on a legal error (requiring a showing of necessity), and that refusing to enforce the subpoena under the correct relevance test would constitute an abuse of discretion.
At oral argument, several of the justices raised questions going beyond the narrow standard-of-review issue to explore whether the information the EEOC sought was relevant. Justice Breyer in particular seemed concerned about the potential breadth of the EEOC’s subpoena power and the burden imposed by its expansive request for information. The high court also heard from a court-appointed amicus curiae advocate arguing for the adoption of a de novo review standard.
While it remains to be seen how the Supreme Court will rule, a decision adopting the abuse-of-discretion standard could make the adjudication of EEOC subpoena enforcement actions more efficient, while adoption of a de novo standard of review could increase costs and delay in cases like McLane, where the lower court declines to enforce a broad subpoena, by giving the EEOC a second bite at the apple on appeal.