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EEOC can subpoena broad swath of firm's personnel information

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In a ruling that could be influential, a federal appeals court has overturned a lower court ruling and OK’d a broad subpoena for personnel information issued by the U.S. Equal Employment Opportunity Commission in its investigation of a sex discrimination case.

The EEOC is investigating a sex discrimination charge filed against Temple, Texas-based McLane Co. Inc., a grocery and foodservice supply chain services company, by a former employee, who was fired when she failed to pass a physical strength test after returning from maternity leave, according to Wednesday’s ruling by the 9th U.S. Circuit Court of Appeals in San Francisco in U.S. Equal Employment Opportunity Commission v. McLane Co. Inc.

Damiana Ochoa filed a charge with the EEOC in January 2008, alleging she was first required to pass the test before being permitted to return to work and was terminated after failing it three times.

The EEOC launched an investigation of the charge and eventually expanded it to include all McLane facilities nationwide, according to the ruling.

McLane provided certain information to the EEOC about the test and the individuals who had been required to take it, but refused to comply with an administrative subpoena that asked for so-called “pedigree information,” including each test taker’s name, Social Security number, last known address and phone number.

The EEOC then filed a subpoena enforcement action. The U.S. District Court in Phoenix ruled that McLane should disclose information including the gender of each test taker, but refused to order the company to divulge the pedigree information and the reasons employees were terminated after taking the test. The court said the EEOC did not need the pedigree information to determine whether the company had used the test to discriminate on the basis of sex, but it did not provide a reason why it refused to require submission of the termination information.

In a unanimous ruling, a three-judge panel of the 9th Circuit held that McLane should provide all the information requested by the EEOC. “We think the pedigree information is relevant to the EEOC’s investigation,” said the appeals court ruling.

Speaking with other individuals besides Ms. Ochoa “might cast light on the allegations against McLane — whether positively or negatively.” The termination information is also “clearly relevant to the EEOC’s investigation,” said the ruling.

A concurring opinion by one of the judges on the 9th Circuit panel said, “it may be that the EEOC’s insistence here on obtaining Social Security numbers and other information that could be used to steal an employer’s identify will endanger the very employees it seeks to protect.”

In November 2014, the 11th U.S. Circuit Court of Appeals in Atlanta chastised the EEOC for issuing an overly board and burdensome subpoena in a discrimination case, in Equal Employment Opportunity Commission vs. Royal Caribbean Cruises Ltd.

Michael Droke, a partner with Dorsey & Whitney L.L.P. in Seattle, said despite the 11th Circuit ruling, the 9th Circuit ruling is likely to be influential.

As a result of the 9th Circuit ruling, “the EEOC will be more aggressive in demanding direct contact information of employees, especially in systemic discrimination cases. As a result, it will be more expensive to defend those kinds of charges, and it increases the chance that other charges will be filed by the employees who are contacted by the EEOC,” said Mr. Droke.