United States: "Pedigree Information" Sought By EEOC In Pre-Litigation Investigation May Be Relevant

Authored by: Trish Higgins and Joshua Naylor

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.

The district court had found that the pedigree information was not relevant at that point in the investigation because other evidence would indicate whether the test discriminated against female employees or prospective employees. The district court suggested that if the EEOC's analysis of that information indicated systemic discrimination, the "pedigree information might become relevant at that point, and its production to the EEOC might then be 'necessary.'"

On remand, the Ninth Circuit followed Justice Ginsburg's concurrence and held that imposing a "necessity" showing was an "incorrect view of the legal standard governing relevance." "The EEOC's need for the evidence—or lack thereof—simply does not factor into the relevance determination." Accordingly, the Ninth Circuit Court of Appeals vacated the district court's order denying enforcement of the subpoena and remanded the case. Importantly, the Ninth Circuit also held that McLane is permitted to argue to the district court that the EEOC's requests for the pedigree information are unduly burdensome.

Employers who are facing investigation by the Equal Employment Opportunity Commission should take note of this decision.

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