Questioning Scope of the Federal Agency Subpoena Power

Employers may soon have more clarity regarding the scope of federal agency subpoena power.  On February 21, 2017, the United States Supreme Court heard oral arguments in McLane Co. v. EEOC,[1] a case initially brought to determine appropriate procedural standards, but has since grown to a case that may determine the appropriate scope of Equal Employment Opportunity Commission (“EEOC”) subpoena power.[2]  This article examines the federal agencies’ subpoena power; the increased agencies’ threats of the use of subpoenas; and an overview of McLane Co. and its potential impact on employers.

The Agency Subpoena Power and Threats

The EEOC has the power to subpoena employers for relevant information to help the agency investigate charges of discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act, as amended (“ADA”), the Age Discrimination in Employment Act of 1967 (“ADEA”), the Equal Pay Act of 1963 (“EPA”), the Pregnancy Discrimination Act (“PDA”), and the Genetic Information Nondiscrimination Act of 2008 (“GINA”).[3]  Additionally, the National Labor Relations Board (“NLRB”),[4] the Department of Labor (“DOL”),[5] and the Occupational Safety and Health Administration (“OSHA”)[6] have subpoena power.  Federal agencies generally interpret their subpoena power broadly, which often leads to subpoenas requesting information outside the actual scope of the case.  Employers faced with such subpoenas generally must either comply or challenge the subpoena in court, both of which require employers to expend significant time and money.  In recent years, federal agencies have increasingly used the threat of a subpoena to coerce employers into voluntarily providing information, much of which is irrelevant to the case at hand, or at times is subpoenaed for use by an agency.

The McLane Co. Impact

In McLane Co., a company employee filed a single charge of discrimination with the EEOC on behalf of only herself alleging gender discrimination under the ADA after the employee failed the company’s physical capability strength test.[7]  During its investigation, the EEOC sought nationwide information about all company facilities, business divisions, and related entities, including information about employee age, despite no mention of age in the charge of discrimination.[8]  When the company challenged the EEOC and refused to produce the requested information, the EEOC subpoenaed personal contact information for the approximately 14,000 employees who took the strength test, and sued to enforce the subpoena in federal district court.[9] 

While the litigation largely surrounded the standard of review that the district court should apply, at the February 21, 2017 Supreme Court oral argument, justices questioned the parties regarding the scope of the EEOC’s subpoena and whether the information was relevant to the case.[10]  This has led several commentators to believe that the Supreme Court may issue an opinion addressing the scope of EEOC subpoenas and provide guidance on the type of information that is “relevant” to a particular case.[11] 

Employers would likely benefit from a Supreme Court ruling setting forth a standard regarding the proper scope of the EEOC subpoena power.  Depending on the ruling, it might be used to assess and potentially challenge subpoenas from other federal agencies and gauge whether a federal agency subpoena—or the threat of such a subpoena—is legitimate, or whether it should be challenged.

Campbell Litigation will continue to track this development and report back when further updates are available.

[1] McLane Co. v. EEOC, U.S., No. 15-1248 (oral argument Feb. 21, 2017). 

[2] Kevin McGowan, What’s the Scope of EEOC Subpoenas?  Justices Hear Lively Debate, Bloomberg BNA Daily Labor Report (Feb. 21, 2017).

[3] See 29 C.F.R. § 1601.16; see also 42 U.S.C. § 2000e-5(b); 29 U.S.C. § 626(a).

[4] See 29 C.F.R. § 102.31.

[5] See 29 C.F.R. § 90.14.

[6] See 29 U.S.C. § 657(b).

[7] McLane Co. v. EEOC, U.S., No. 15-1248, at *5-6 (petition for writ of certiorari Apr. 4, 2016).

[8] Id.

[9] Id. at *7-10.

[10] See McGowan, supra note 2.

[11] Id.