Supreme Court to Decide Appellate Court Level to Review EEOC Subpoenas

McLane v. EEOC is a case only an (employment) lawyer could love.

When the Equal Employment Opportunity Commission (EEOC) investigates allegations of employment discrimination if the employer refuses to provide the information the EEOC requests it will issue a subpoena demanding the employer produce the information. If the employer refuses to comply with the subpoena the EEOC may ask a court to enforce it.

The question in McLane v. EEOC is whether a court of appeals should review a district court’s decision to quash or enforce an EEOC subpoena de novo (“from the new”), instead of deferring to the lower court’s ruling. Of the nine federal circuits to consider this question, only the Ninth Circuit reviews EEOC subpoena requests de novo. In its opinion, even the Ninth Circuit admits it is “unclear” why it does so.

Unlike most employment cases it is not clear which outcome is better for public employers. Looking at this question on a case-by-case basis, if a district court quashes an EEOC subpoena an employer would prefer the appeals court review that decision deferentially.

But if a district court grants an EEOC subpoena an employer would prefer de novo review of that decision.


Looking at the question of the preferred standard or review more generally, it may be advantageous to public employers if appellate courts review subpoena enforcement decisions deferentially to lower courts because this standard will discourage both parties from pursuing time-consuming and expensive appeals.  


In this case Damiana Ochoa, a cigarette selector, filed a charge with the EEOC alleging sex discrimination in violation of Title VII. She was terminated after failing to pass a physical capability strength test upon returning from maternity leave. The EEOC subpoenaed her employer, McLane, requesting biographical information on other test takers and for those employees who were terminated after taking the test, the reasons for their termination.