Wednesday, May 24, 2017

EEOC v. McLane Company (9th Cir. - May 24, 2017)

The EEOC wants contact information from the defendant about those female employees the company required to take a strength test (their names, social security numbers, last known address, etc.).  The district court didn't allow the EEOC to discover this information.

The Ninth Circuit reviewed the matter de novo and reversed.  But then the Supreme Court took up the case and said, no, the standard of review is abuse of discretion.

So today, the Ninth Circuit revisits the case under the new standard.

And, in perhaps no great surprise, comes to the exact same conclusion.

Some of the panel's reasoning may also be useful for anyone who wants to obtain similar contact information in analogous types of cases.  Check this out:

"[T]he pedigree information is relevant to the EEOC’s investigation. 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. 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. To take but one example, the EEOC might learn through such conversations that other female employees have been subjected to adverse employment actions after failing the test when similarly situated male employees have not. Or it might learn the opposite. 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. To pursue that path, however, the EEOC must first learn the test takers’ identities and contact information, which is enough to render the pedigree information relevant to the EEOC’s investigation."

And that's not all:

"McLane contends that, given all of the other information it has produced, the EEOC cannot show that production of the pedigree information is “necessary” to complete its investigation. But the governing standard is not “necessity”; it is relevance. If the EEOC establishes that the evidence it seeks is relevant to the charge under investigation, we have no warrant to decide whether the EEOC could conduct the investigation just as well without it. The EEOC does not have to show a “particularized necessity of access, beyond a showing of mere relevance,” to obtain evidence. University of Pennsylvania v. EEOC, 493 U.S. 182, 188 (1990). Congress has not left it to employers accused of discrimination to decide what evidence may be necessary for the EEOC to complete its investigation. Id. at 193."

What's true for the EEOC is presumably true for other plaintiffs (and their counsel) as well.

A potentially useful holding.