EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 7 The court also noted that the EEOC’s investigation had provided notice of the breadth of the EEOC’s claims, and the employer had responded to those requests: “[Employer’s] argument that it lacked sufficient notice of the extent of EEOC's claims is therefore unpersuasive, given that [employer] itself provided the EEOC with information that gave rise to the challenged allegations in the Complaint.” 30 The court explained that the employer should have challenged the scope of the EEOC’s information requests during the investigation: “Had [employer] ‘believed that the EEOC's investigation exceeded the permissible statutory scope, it could have refused the EEOC's demand for access and sought adjudication of its rights.’” 31 In FY 2021, the EEOC initiated three subpoena enforcement actions. That number is considerably lower than the eight and 18 enforcement actions that were filed in FY 2019 and FY 2018, and three filed in FY 2020, respectively. And it appears to show the continuation of a trend toward fewer subpoena enforcement actions that has been developing over the past few years. The EEOC initiated 17 subpoena enforcement actions in 2017 , 32 28 in FY 2016 , 33 and 32 in FY 2015 . 34 It is unlikely that the EEOC is backing off of these issues, but is more likely that employers are more apt to voluntarily respond to requests for information rather than try to defend themselves in Court given the shifting and often challenging landscape of District Court decisions. a. Courts Upholding A Broad Scope Of EEOC Subpoenas After The Supreme Court Clarified The Standards Of Appellate Review In McLane Co. v. EEOC In 2017, the U.S. Supreme Court clarified the standard of review of a District Court’s decision regarding enforcement of EEOC subpoenas in McLane Co. v. EEOC . 35 According to the Supreme Court, abuse-of- discretion review is the longstanding and most appropriate practice for the courts of Appeals when reviewing a decision to enforce or quash an administrative subpoena. 36 The Supreme Court held that a decision to enforce or quash an EEOC subpoena is case-specific and does not depend on a neat set of legal rules. Instead, it requires the application of broad standards to “multifarious, fleeting, special, narrow facts that utterly resist generalization.” 37 These types of considerations are more appropriately made by the District Courts. On remand, the Ninth Circuit applied the more deferential abuse-of-discretion standard to the District Court’s decision, but reversed the trial court nonetheless. The Ninth Circuit found that the District Court’s formulation of the relevance standard was too narrow. 38 The Ninth Circuit explained that, under Title VII, the EEOC may obtain evidence if it relates to unlawful employment practices and is relevant to the charge under investigation, which encompasses “virtually any material that might cast light 30 Id . at *3. 31 Id . (quoting EEOC v. Occidental Life Insurance Co. of California , 535 F.2d 533, 541 (9th Cir. 1976)). The court also refused to examine the contents of the EEOC’s efforts at conciliation to find whether the EEOC had properly conciliated all of the allegations alleged in the complaint, noting that: “[employer] asks the Court to do precisely what the Supreme Court and Ninth Circuit have said it must not do—examine the content of the parties’ conciliation to determinate whether the EEOC engaged in a good-faith effort to resolve each of the allegations of discrimination directed at [employer].” Id . at *4. 32 U.S. Equal Employment Opportunity Commission, Fiscal Year 2017 Performance and Accountability Report, at 36, https://www.eeoc.gov/eeoc/plan/upload/2017par.pdf. 33 U.S. Equal Employment Opportunity Commission, Fiscal Year 2016 Performance and Accountability Report, at 36, https://www.eeoc.gov/eeoc/plan/upload/2016par.pdf. 34 U.S. Equal Employment Opportunity Commission, Fiscal Year 2015 Performance and Accountability Report, at 34, http://www.eeoc.gov/eeoc/plan/upload/2015par.pdf. 35 McLane Company, Inc. v. EEOC , 137 S. Ct. 1159 (2017). The case arose out of a Title VII charge brought by a woman who was terminated after thrice failing a physical capabilities evaluation upon returning to work from maternity leave. McLane , 137 S. Ct. at 1165. During the investigation, the Commission requested a list of employees who had taken the physical evaluation. Although the employer provided such a list, it refused to provide “pedigree information,” including personal identifying information. Id. The EEOC challenged the employer’s refusal, and the District Court sided with the employer, holding that such information was not “relevant” to the charge at issue. EEOC v. McLane Company, Inc. , No. 12-CV-2469, 2012 WL 5868959, at *5 (D. Ariz. Nov. 19, 2012). The Ninth Circuit reviewed the District Court’s decision de novo and reversed the District Court. EEOC v. McLane Company, Inc. , 804 F.3d 1051, 1057 (9th Cir. 2015). 36 McLane , 137 S. Ct. at 1167. 37 Id. 38 EEOC v. McLane Company, Inc. , 857 F.3d 813, 816 (9th Cir. 2017).