Supreme Court to Hear Case Challenging EEOC's Investigatory Power

Author: David B. Weisenfeld, XpertHR Legal Editor

October 10, 2016

The Supreme Court opened its new term by agreeing to hear a case involving the power of the Equal Employment Opportunity Commission (EEOC) to compel an employer to turn over information during an investigation. The dispute stems from the EEOC's investigation into possible Title VII violations at a grocery supply company's Arizona subsidiary.

The employer, McLane Company, told an employee returning from maternity leave that she needed to pass a strength test in order to return to her job. After she failed the test three times, McLane fired her.

After the woman filed a complaint for sex discrimination based on pregnancy with the EEOC, the employer voluntarily turned over information about its physical strength test, who was required to take it and the reasons why. But the EEOC wanted to know more. It sought the following employee information:

  • Names;
  • Social Security numbers;
  • Last known addresses;
  • Phone numbers; and
  • When and why certain employees were terminated.

The EEOC reasoned that it should at all reasonable times have the right to obtain a copy of any evidence relating to unlawful employment practices so long as the evidence is relevant to the investigation. But a federal district court judge refused to enforce the EEOC's subpoena in part, including with regard to the reasons for termination.

The Ninth Circuit Court of Appeals, however, sided with the EEOC. Other federal appellate courts have reached contrary holdings about the extent of the EEOC's power to enforce its requests for information as part of an investigation.

Employer groups, including the Equal Employment Advisory Council, are supporting McLane in the case. They claim that if the Ninth Circuit's ruling is allowed to stand it will encourage the EEOC to overreach during investigations and increase the chances that confidential information will be disclosed.

The Supreme Court will resolve the dispute later this term. Arguments in McLane Company, Inc. v. EEOC have not yet been scheduled, but are likely to be heard in early 2017.