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Attorneys

Ninth Circuit Allows EEOC To Obtain Private Employee Information During Investigations

December 9 2015

By: Daniel Kim

The Ninth Circuit recently held that during an EEOC investigation, employers can be forced to produce “pedigree information” (i.e., name, telephone number, address, and Social Security number) of their employees or employment applicants. The decision broadens the scope of information that the EEOC can obtain during its investigations and gives the EEOC further grounds to investigate beyond what is arguably “necessary” to make a determination on an EEOC charge.

The Underlying Action

In the underlying Arizona District Court case, EEOC v. McLane Company, Inc., Case No. 13-15126, 2015 U.S. App. LEXIS 187702, a McLane employee, Damiana Ochoa, filed a charge of gender discrimination. After taking maternity leave, Ochoa attempted to return to work but was eventually terminated based on her failure to pass a physical capability strength test multiple times. The EEOC conducted an investigation into the discrimination charge, requesting information regarding the strength test and information on employees who had taken the test. McLane produced the requested information except for employee pedigree information and the grounds for its decisions to terminate employees who had taken the test, refusing based on relevance and privacy. In response, the EEOC filed a subpoena enforcement action to compel McLane’s compliance with the subpoena. The district court, however, refused to enforce the subpoena agreeing with McLane that the pedigree information was irrelevant and unnecessary to issue a determination on the underlying charge.

The Ninth Circuit’s Ruling

In reversing the district court’s ruling, the Ninth Circuit held that the pedigree information and information regarding the reasons for terminating other employees who had taken the test was relevant to the EEOC’s investigation. It remanded to the trial court to determine whether the information sought would be unduly burdensome, even though McLane had not made that argument in opposition to the subpoena. In its ruling, the Ninth Circuit held that the “governing standard [was] not ‘necessity’; it [was] relevance” and that the “relevance standard in this context [swept] more broadly than it would at trial [and] encompass[ed] virtually any material that might cast light on the allegations against the employer.” For reasons that are unclear, the Ninth Circuit did not give much weight to McLane’s privacy objections, although Judge Milan D. Smith wrote a separate concurring opinion expressing concerns over the privacy issues and the government’s loose treatment of the information which exposed the employees to identity theft. It remains to be determined to what extent privacy or overburdensome objections can be used to successfully oppose such a broad interpretation of relevance in the context of EEOC investigations.

Takeaway

The Ninth Circuit’s opinion will likely embolden future EEOC investigations. Employers should continue to object and oppose overburdensome and otherwise objectionable requests for information. Despite the court’s ruling, employers remain obligated to protect their employees’ privacy rights and should not readily disclose such information based on this ruling.