Probe of Pregnancy Bias Revived by Ninth Circuit

     SAN FRANCISCO (CN) – A grocery-supply company accused of pregnancy discrimination must answer a subpoena about the strength tests it gives workers, the Ninth Circuit ruled Tuesday.
     The case stems from a 2008 charge that Damiana Ochoa filed with the Equal Employment Opportunity Commission after she was unable to return to work at an Arizona subsidiary of McLane Company as a cigarette worker.
     When Ochoa returned from maternity leave, McLane would not her resume her job of eight years without taking a strength test. She failed three times and was fired.
     With the EEOC announcing an investigation into possible Title VII violations, McLane voluntarily provided general information about its strength test and the workers who had to take the test.
     McLane created an employee ID number system, however, for the sole purpose of responding to the EEOC’s investigation without divulging identifying information about its workers.
     Thus the EEOC learned the gender, job class and score of each employee who took the strength test, but McLane withheld their “pedigree information” – specifically their names, Social Security numbers, addresses and telephone numbers.
     In instances where an employee who took the test was later fired, McLane also refused to say when or why such termination occurred.
     When the EEOC expanded its investigation beyond the Arizona subsidiary to all McLane grocery-division facilities across the country, McLane withheld similar data.
     The EEOC in turn subpoenaed the withheld information, but a federal judge in Arizona largely sided with McLane.
     The court said McLane had to indicate any adverse employment action imposed within 90 days of an employee’s taking the test, but otherwise hewed to information that McLane had already provided.
     U.S. District Judge G. Murray Snow found the employees’ pedigree information irrelevant but did not indicate why McLane need not produce information about the circumstances of its terminations.
     A three-judge panel of the Ninth Circuit reversed Tuesday.
     Pedigree information is relevant to the EEOC’s investigation because speaking with individuals besides Ochoa who have taken the strength test “might cast light on the allegations against McLane – whether positively or negatively,” Judge Paul Watford wrote for the San Francisco-based court.
     “Either way, the EEOC will be better able to assess whether use of the test has resulted in a ‘pattern or practice’ of disparate treatment,” Watford said. “To pursue that path, however, the EEOC first needs to learn the test takers’ identities and contact information, which is enough to render the pedigree information relevant to the EEOC’s investigation.”
     Though McLane argued that the pedigree information is not “necessary,” the court found that the EEOC is entitled to obtain that information now because “the pedigree information meets the broad standard for relevance.”
     McLane also failed to show that the test is “neutrally applied” since it makes all employees returning from medical leave take the test.
     “Even though McLane requires everyone to take the test, the test could still be applied in a discriminatory manner – if, for example, the company were to routinely excuse the failure of male employees to pass the test but grant no such exemptions to similarly situated female employees,” Watford said.
     As to the information about the reasons for employees’ termination, Watford said it is “clearly relevant” to the investigation.
     Watford must explain whether he thinks such production is unduly burdensome on remand.
     Judge Milan Smith wrote a separate concurrence to address his concern that requiring McLane to disclose employees’ Social Security numbers would violate employee privacy, by which the EEOC could “endanger the very employees it seeks to protect.”
     “The EEOC would be well advised to consider these issues in the collection of data in this case,” Smith said.
     McLane did not return a request for comment on Tuesday morning but the EEOC praised the decision.
     “We are pleased that the court’s ruling now will enable EEOC to complete its investigation of McLane’s practices,” EEOC Associate General Counsel Jennifer Goldstein said in an email.
     Goldstein applauded the Ninth Circuit for reaffirming the agency’s right “to ‘relevant’ information, broadly defined.”
     The ruling shows that, when “the information sought meets that broad definition, Congress did not leave it to employers accused of discrimination to decide what evidence is necessary for EEOC to complete its investigation,” Goldstein added.

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