9th Circuit

“Pedigree Information” Sought by EEOC In Pre-Litigation Investigation May Be Relevant

Gender inequality on career path business concept, Business lady runs against businessman on career path, but fails because on her side of path there are a lot of obstacles.. “Pedigree Information” Sought by EEOC In Pre-Litigation Investigation May Be Relevant

Following a vacate and remand order by the United States Supreme Court for employing the de novo standard of review rather than the abuse of discretion standard, the Ninth Circuit revisited the standard for relevance in the EEOC subpoena context.  EEOC v. McLane Co., No. 13-15126 (9th Cir. May 24, 2017).

In McLane, the EEOC was investigating a charge of gender discrimination which was based on the employer’s use of a physical capacity strength test. As part of its pre-litigation investigation into that charge, of gender discrimination filed by an ex-McLane Company employee, the EEOC issued a subpoena for “pedigree information” (i.e., name, Social Security number, last known address, and telephone number) for employees or prospective employees who took the physical capability strength test.

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It’s Smooth Sailing for a Shipping Company After Ninth Circuit Arbitration Victory

Last month, the Ninth Circuit issued a notable opinion addressing the enforceability of arbitration agreements in Poublon v. C.H. Robinson Co., 846 F.3d 1251 (9th Cir. 2017), mandate issued (Feb. 24, 2017).  In Poublon, the employee filed a class action even though she signed a dispute resolution agreement that prohibited representative actions and required her to mediate and arbitrate all other claims.  The court evaluated the agreement to determine if it was unconscionable under California law, which looks at both procedural and substantive unconscionability on a sliding scale.  Although the court held that a few provisions were substantively unconscionable, the court severed and reformed the offending provisions and largely upheld the dispute resolution agreement. READ MORE