The Equal Employment Opportunity Commission brought a subpoena enforcement action against an employer, McLane Company, for failing to produce evidence the agency requested in its investigation of a female employee's complaint that her termination for failing a strength test upon return from maternity leave violated Title VII.   The company allegedly required all new employees and employees returning to work following medical leave to take the test.  The employee claimed that her termination came when she failed a physical capability strength test after returning from maternity leave and was thereafter precluded from resuming the cigarette selector position she had previously held for 8 years.

 

During the agency's investigation of the employee's allegations, it sought information from the employer on the test and individuals who had been required to take it.  The employer provided general information on test takers, including gender, job class, the reason each test taker took the test and whether each test taker passed or failed the test.  It refused to provide "pedigree information" including test taker name, social security number, last known address, and phone number.  The EEOC challenged this refusal in district court, where the judge required the employer to disclose test taker gender, the date each test was given, the score each test taker received, the position for which the test was taken, the passing score for that position, and any adverse employment action imposed within 90 days after the test being taken.  The district court refused to require the employer to provide the pedigree information for test takers or the reasons that any test takers were terminated after taking the test.  The EEOC appealed this decision to the United States Court of Appeals for the Ninth Circuit.

 

In reviewing the district court's decision, the Ninth Circuit noted that judicial review of an EEOC administrative subpoena is narrowly limited to (1) whether Congress granted the authority to investigate; (2) whether procedural requirements were followed; and (3) whether the evidence was relevant and material to the investigation.  A court must enforce the subpoena if these conditions are met and the objecting party cannot show that the subpoena is overbroad or that compliance would be unduly burdensome.

 

Applying the foregoing test, the Ninth Circuit held that the district court erred in concluding that "pedigree information" was not relevant at this stage in the agency's investigation and therefore need not be produced.  In reversing the lower court's decision, the Ninth Circuit reasoned that a demonstration of relevance merely requires a showing that the material might cast light on the allegations against the employer.  The EEOC made this showing in this case, because obtaining the "pedigree information" will enable it to contact other employees and applicants who have taken the test and learn more about their experiences and assess whether use of the test has resulted in a "pattern or practice" of disparate treatment.  Provision of the social security number information will also enable the agency to accurately identify test takers in the data sets the employer provided.  In light of this, and the fact that the employer failed to provide any evidence suggesting that compliance would be unduly burdensome, the Ninth Circuit reversed the district court's decision on this matter and enforced the EEOC's subpoena as to test taker "pedigree information."  U.S. EEOC v. McLane Company, Inc.