U.S. Supreme Court Decides Standard of Review Related to EEOC’s Subpoena

When the EEOC seeks to enforce a subpoena, the district court’s review of the subpoena is highly deferential. “If the charge is proper and the material requested is relevant, the district court should enforce the subpoena unless the employer establishes that the subpoena is “too indefinite,” has been issued for an “illegitimate purpose,” or is unduly burdensome.”[1] Prior to April 2017, the majority of circuits agreed a district court’s decision to enforce or deny an EEOC subpoena is reviewed for abuse of discretion.[2] Only the Ninth Circuit Court of Appeals applied a different review, choosing instead to review de novo.[3]

On April 3, 2017, the Supreme Court used the case of McClane Co. v. Equal Employment Opportunity Commission to clarify district court decisions regarding whether to enforce an EEOC subpoena should be reviewed for “abuse of discretion.”[4]

In McClane, a former employee of McClane Co., a supply-chain services company, asserted a claim of sex discrimination arising from the company’s choice to subject her to a physical strength test before she returned to work from maternity leave. In the course of its investigation, the EEOC sought information from McClane, including “pedigree information” -- names, genders, social security numbers, contact information, reasons for separation, etc. -- for all employees who had taken the test. The company refused to provide names, contact information, and the reasons for separation for each employee who took the test. The EEOC issued a subpoena for the requested information, which it sought to enforce in the Arizona District Court.

The district court denied enforcement as to the “pedigree information” on the grounds that it was irrelevant to the subject matter of the charge because “ ‘an individual's name, or even an interview he or she could provide if contacted, simply could not shed light on whether the [evaluation] represents a tool of ... discrimination.’ ”[5] On appeal, the Ninth Circuit reversed, applying a de novo review, consistent with that Circuit’s precedent, and determined the pedigree information was relevant and therefore subject to subpoena.[6]

The Supreme Court unanimously agreed with the majority of the circuits that “abuse of discretion” is the appropriate review standard for district court decisions reviewing agency subpoenas.[7]  Writing for the court, Justice Sotomayor noted the court’s decision was in line with the “longstanding practice of the courts of appeals” which predated Title VII.[8] Justice Sotomayor noted Title VII confers the same authority upon the EEOC as the National Labor Relations Act (NLRA) confers upon the National Labor Relations Board, and the circuits were unanimous in holding that a district court's decision whether to enforce an NLRB subpoena should be reviewed for abuse of discretion.[9] Thus, the same review should apply to the EEOC.

According to Justice Sotomayor, the court’s decision was also rooted in the “basic principles of institutional capacity” as determining whether the evidence sought is relevant to the specific charge or whether the subpoena is unduly burdensome in light of the circumstances are “[b]oth tasks … well suited to a district judge's expertise.”[10] Furthermore, the district courts’ “considerable experience” in making similar decisions such as whether particular evidence is admissible at trial gave district courts an “institutional advantage” over the appellate courts in making such determinations and thus, vesting district courts with discretion in these decisions “streamline[s] the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court.”[11] Accordingly, the Supreme Court sent the case back to the Ninth Circuit to review the district court’s decision for abuse of discretion.[12]

Interestingly, on remand, the Ninth Circuit reaffirmed the result of its prior ruling, this time determining the district court had indeed abused its discretion by denying enforcement of the subpoena.[13] Taking a cue from Justice Ginsburg’s concurrence, Judge Watford held the district court's ruling was “predicated on an erroneous view of the legal standard governing relevance in this context” and therefore should be overturned for abuse of discretion.[14] The alleged erroneous view held by the district court concerned the extent of the relevance limitation imposed by Title VII.[15] According to the Ninth Circuit, the appropriate question was not whether the evidence sought would tend to prove a charge of unlawful discrimination, as would be the case at trial, but whether the evidence would tend give the agency “reasonable cause … to believe that the charge is true.”[16]  The court held that under this inquiry, which “sweeps more broadly” at the subpoena stage than it would at trial, the universe of “relevant” information encompasses “virtually any material that might cast light on the allegations against the employer.”[17] Thus, under this review, the EEOC’s subpoena for “pedigree information” was appropriate.

Unlike Justice Ginsburg’s separate concurrence, the majority did not opine on whether the district court’s decision was appropriate, but rather focused only on the appropriate framework for review. It remains to be seen whether the Ninth Circuit’s doubling down on its earlier decision under the newly minted standard will cause the Supreme Court to take the case back up for a second review. Review may be necessary, however, to provide clear guidance as to how far district courts should expect to be able to run with the nationwide standard created by McClane.

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JOSH SUDBURY is a senior associate at Ford Harrison in its Nashville office, where he concentrates his practice on representing management in a variety of labor and employment matters. He received his J.D. at University of Memphis School of Law in 2009. Josh may be reached at jsudbury@fordharrison.com or 615-574-6705.


[1]McClane Co. v. EEOC, 137 S. Ct. 1159, 1165 (April 3, 2017).

[2]See, e.g., EEOC v. Kronos Inc., 620 F.3d 287, 295–296 (3rd Cir. 2010); EEOC v. Randstad, 685 F.3d 433, 442 (4th Cir. 2012); EEOC v. Roadway Express, Inc., 261 F.3d 634, 638 (6th Cir. 2001); EEOC v. United Air Lines, Inc., 287 F.3d 643, 649 (7th Cir. 2002); EEOC v. Technocrest Systems, Inc., 448 F.3d 1035, 1038 (8th Cir. 2006); EEOC v. Dillon Companies, Inc., 310 F.3d 1271, 1274 (10th Cir. 2002); EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757, 760 (11th Cir. 2014) (per curiam).

[3]EPA v. Alyeska Pipeline Serv. Co., 836 F.2d 443, 445–446 (9th Cir. 1988) (holding that de novo review applies).

[4]McClane at 1170.

[5]Id. at 1166 (quoting EEOC v. McLane Co., 2012 WL 1132758, *5 (D. Ariz., Apr. 4, 2012)).

[6]See 804 F.3d 1051, 1057 (2015).

[7]Justice Ginsburg wrote a separate opinion agreeing that “abuse of discretion” standard was appropriate but noting she would have affirmed the Ninth Circuit’s judgment to reverse the lower court’s decision regarding enforcement of the subpoena. See 137 S. Ct. 1159, at 1170 (Ginsburg, J., concurring in part and dissenting in part).

[8]Id. at 1166.

[9]Id. at 1167 (citing NLRB v. Consolidated Vacuum Corp., 395 F.2d 416, 419–420 (2nd Cir. 1968); NLRB v. Friedman, 352 F.2d 545, 547 (3rd Cir. 1965); NLRB v. Northern Trust Co., 148 F.2d 24, 29 (7th Cir. 1945); Goodyear Tire & Rubber Co. v. NLRB, 122 F.2d 450, 453–454 (6th Cir. 1941)). 

[10]Id. at 1168.

[11]Id. (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 404 (1990)).

[12]Id. at 1170.

[13]--- F.3d ---, 2017 WL 2261015, *1 (May 24, 2017).

[14]Id. at *2.

[15]Id.

[16]Id.

[17]Id.

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