Title VII of the Civil Rights Act of 1964 (Title VII) bestows upon the Equal Employment Opportunity Commission (EEOC) the right to subpoena records from employers against whom formal charges of discrimination have been filed; the EEOC also can subpoena employer representatives for interviews. The purpose of this subpoena power is to allow the EEOC to determine the validity of charge allegations. The scope of this subpoena power is broad – according to EEOC v. Shell Oil, a 1984 United States Supreme Court decision, the EEOC can subpoena “virtually any material that might cast light on the allegations against the employer.” If an employer fails or elects not to comply with the subpoena, the EEOC can seek an order from a United States District Court enforcing the subpoena. The District Court must apply the “generous” relevance test. If the requested information sought is determined to be relevant, the District Court only can quash the subpoena if it is determined to be “too indefinite,” issued for an “illegitimate purpose,” or is “unduly burdensome.”
Employer McLane Co. challenged such an EEOC subpoena that sought broad “pedigree information” – names, social security numbers, addresses, and telephone numbers – for a long list of its employees whom the EEOC suspected were subjected to sex and age discrimination. In response to McLane’s challenge, the EEOC sought a District Court enforcement order. But the Arizona District Court disagreed with the EEOC, and refused to enforce the subpoena on the basis that the pedigree information sought was not relevant to the sex and age discrimination charges.
The EEOC appealed to the Ninth Circuit. The Ninth Circuit disagreed with the District Court’s finding and, upon a review of the applicable facts and law, determined the subpoenaed information was relevant to the sex and age discrimination charges. The Ninth Circuit remanded, leaving the remaining questions of reasonableness for the District Court to determine. In its relevance analysis, the Ninth Circuit applied a de novo standard of review. Under this standard of review, an appellate court considers a matter with a fresh eye on the facts and law, without deference to the underlying District Court’s findings.
McLane then petitioned the United States Supreme Court to review the Ninth Circuit’s order, arguing that the appeals court should have reviewed the lower court’s order under the deferential abuse of discretion standard. Under this standard, the appellate court is not a fact finder and only determines whether the District Court committed clear error. Although the Ninth Circuit panel in McLane followed the Circuit’s precedent when it applied the de novo standard, the panel itself questioned this standard. Indeed, the Ninth Circuit is the only Circuit that had applied a de novo review to EEOC subpoenas up to that point. Due to the disagreement among the Circuits, the Supreme Court granted review of the McLane order.
Upon its review, the Supreme Court agreed with the other Circuits; District Court EEOC subpoena enforcement orders are subject to an abuse of discretion review by appellate courts. The Supreme Court based its decision largely on two factors – the backdrop of legal precedent in which the EEOC subpoena power was enacted under Title VII, and the institutional capacity of the District Courts versus the appellate courts to conduct the fact-specific inquiries involved. With regard to the first factor, the Supreme Court noted that the EEOC’s subpoena powers were authorized in 1972, intending to model the subpoena powers of the National Labor Relations Board, which are authorized under the National Labor Relations Act (NLRA). In the nearly four decades between the creation of the NLRA and the Title VII amendment authorizing EEOC subpoena power, every appellate court to consider the question determined an NLRB subpoena enforcement order was subject to appellate review under the abuse of discretion standard. On the second factor, the Supreme Court found that District Courts are better suited to make the “fact intensive, close calls” required in the subpoena review. Indeed, District Courts consider fact issues pertaining to discovery and evidence on a regular basis. Having clarified the standard of review, the Supreme Court remanded the McLane matter to the Ninth Circuit to re-review the District Court’s decision, this time for an abuse of discretion.