Subpoena Review Issue Headed to High Court

     (CN) — The Supreme Court said Thursday it will resolve a circuit split regarding the standard of review for appeals of Equal Employment Opportunity Commission subpoenas.
     The case stems from a 2008 charge that Damiana Ochoa filed with the U.S. 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, the grocery-supply company would not her resume her job of eight years without taking a physical 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 Ninth Circuit reversed in October 2015, finding that McLane must answer the subpoena about the strength tests it gives workers.
     McLane appealed to the U.S. Supreme Court in a petition for a writ of certiorari filed in April, arguing that the Ninth Circuit’s ruling conflicts with other circuits “by enforcing a subpoena that amounts to an impermissible fishing expedition for irrelevant material far outside the scope of the charge under investigation.”
     “The Ninth Circuit’s decision exacerbates an acknowledged circuit split that pits that court against eight other circuits on the critical question of whether to review de novo, or instead with deference…in enforcing or quashing EEOC subpoenas,” the petition states.
     On Thursday, the high court agreed to decide whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo — as if it were considering the issue for the first time — or reviewed deferentially, giving regard to lower court decisions.
     The Supreme Court did not comment on its decision to hear the case.

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