Thomas Balks as High Court Rejects Challenge to Agency Power

WASHINGTON (CN) — Justice Clarence Thomas signed a plaintive dissent Monday as the Supreme Court turned down a challenge to the Equal Employment Opportunity Commission’s investigatory powers.

“I would grant certiorari to determine whether the agency is operating within the confines of the authority granted by Congress,” the 6-page opinion states.

Per its custom, the court did not otherwise elaborate on why it rejected VF Jeanswear LP v. Equal Employment Opportunity Commission, one of dozens of cases denied certiorari on Monday.

The case stems from an EEOC investigation of claims that VF Jeanswear had demoted a saleswoman on the basis of sex. Though the commission did not otherwise intervene in two lawsuits the worker filed — one in state, and one in federal court — Thomas noted that it “continued with its own, far broader investigation.”

VF Jeanswear had petitioned the Supreme Court for a reversal after the Ninth Circuit ordered it to comply with an EEOC subpoena that sought data on the company’s management over a certain time period, including the reason for termination if the employment relationship had ended.

Thomas called the Ninth Circuit’s approach to the relevant case law “highly problematic.”

“The Ninth Circuit acknowledged that its reading conflicted with the Fifth Circuit’s decision in Hearst,” Thomas wrote, referring to a 1997 decision that also involved the EEOC. “But it disagreed with the Fifth Circuit primarily because it viewed Hearst as conflicting with the EEOC’s role in vindicating the public’s interest in eradicating employment discrimination.”

Thomas counted four flaws in the appellate panel’s analysis, calling it egregious that the court entirely “bypassed the statutory text” of Title VII.

He also called the jurisdictional approach “highly suspect, if not outright erroneous,” and slammed what he called an inappropriate “reliance on and deference to the EEOC’s regulation.

“There is no basis for applying a ‘plainly lacking’ standard when assessing the authority of an agency to act, let along to issue wide-ranging subpoena that consume the time and resources of employers,” Thomas wrote.

Saying the court should have granted certiorari, Thomas warned that employers will see massive fallout from the court’s failure to check the “questionable interpretation” of Title VII that the Ninth and Sevent Circuits have embraced.

VF Jeanswear is represented by Womble Bond Dickinson attorney James Powell.

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