(CN) – On remand from the Supreme Court, the Ninth Circuit ruled Wednesday that an Equal Employment Opportunity Commission subpoena is enforceable in an investigation of whether a grocery-supply company’s strength test discriminates against women.
The ruling on remand followed much the same lines as the Ninth Circuit’s October 2015 ruling in the discrimination case.
Damiana Ochoa, a former worker at an Arizona subsidiary of McLane Company, could not pass McLane’s strength test on three attempts after returning from maternity leave. When the EEOC investigated potential Title VII violations, McLane disclosed some information about the employees who took the test but withheld their names, Social Security numbers, addresses and telephone numbers, also known as “pedigree information.”
The U.S. District Court for the District of Arizona ruled that McLane provided sufficient information “at this stage” to allow the EEOC to determine if there was systematic discrimination, but that the pedigree information might become “necessary” later.
Ninth Circuit Judge Paul Watford, writing for the original unanimous panel, found this was the wrong standard. Reviewing the district court’s decision de novo, Watford found that McLane had to comply with the subpoena because relevance, not necessity, governed whether the subpoena was enforceable.
The case made its way to the U.S. Supreme Court, where Justice Sonia Sotomayor wrote that decisions on the enforceability of an EEOC subpoena should be reviewed for abuse of discretion rather than de novo. Courts of appeal have typically applied a deferential standard of review for administrative subpoenas, with the Ninth Circuit being the lone exception to apply a searching standard.
The same Ninth Circuit panel reviewed the case on remand and decided, again, that the district court erred by failing to enforce the subpoena. It adopted the still-relevant portions of its previous opinion.
“The question is not whether the evidence sought would tend to prove a charge of unlawful discrimination. At the investigative stage, the EEOC is trying to determine only whether ‘reasonable cause’ exists ‘to believe that the charge is true.’” (Emphasis in original.)
Because the pedigree information is relevant to the investigation, the subpoena is enforceable.
“Ochoa’s charge alleges that McLane’s use of the strength test discriminates on the basis of sex. To decide whether there is any truth to that allegation, the EEOC can of course speak to Ochoa about her experience with taking the test,” Watford wrote. “But the EEOC also wants to contact other McLane employees and applicants for employment who have taken the test to learn more about their experiences. Speaking with those individuals ‘might cast light’ on the allegations against McLane — whether positively or negatively.”
The district court “necessarily abused its discretion” by applying the wrong standard, so its decision is vacated, though McLane may still pursue an argument that the subpoena is overly burdensome.
The EEOC said in an email: “We are pleased that the Ninth Circuit quickly reaffirmed that the district court made errors of law in refusing to enforce the EEOC subpoena.”
Joining Watford on the panel were Ninth Circuit Judges J. Clifford Wallace and Milan Smith Jr.
McLane was represented by Ronald Manthey with Morgan, Lewis & Bockius in Dallas, who could not be reached for comment Thursday.