The Rocky Mountain Employer


Labor & Employment Law Updates


When an employee or former employee files a discrimination charge against your company, the pressure and burdens associated with complying with an Equal Employment Opportunity Commission (EEOC) investigation can be significant. However, a recent decision from the U.S. Supreme Court makes clear that the EEOC’s investigation subpoena powers are not limitless.[1]

Upon receipt of a charge filed by the person alleging discrimination, the EEOC must notify the employer and launch an investigation to determine the veracity of the claim. An EEOC subpoena is a key tool in implementing an investigation.[2] 

In McLane, the Supreme Court re-stated the test that courts must use to determine whether to enforce an EEOC subpoena. Specifically: (1) the information requested in the subpoena must be “relevant” to the underlying EEOC charge;[3] (2) the subpoena must not be “too indefinite” or “unduly burdensome;”[4] and (3) the subpoena must not have been issued for an “illegitimate purpose.” The Supreme Court in McLane remanded the decision to the Court of Appeals to determine whether the District Court properly refused to enforce an EEOC subpoena.

Although EEOC holds broad investigation powers, McLane serves as a reminder that the agency’s powers are not without limits.

[1] McLane Co., Inc. v. EEOC, 137 S. Ct. 1159 (2017). The Supreme Court held in McLane that a district court’s decision whether to enforce or quash an EEOC subpoena should be reviewed for abuse of discretion, not de novo. Id. at 1167-68.

[2] See February 23, 2017 blog post for a general discussion on agency subpoena powers.,

[3] The “relevance” of a subpoena is broadly construed to include virtually any material that might cast light upon the allegations of unlawful employment practices asserted against the employer. See EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984). The ultimate decision of whether the request made in a subpoena is “relevant” requires the court to evaluate the relationship between the particular materials sought and the particular matter under investigation. See EEOC v. Loyola Univ. Medical Center, 823 F. Supp. 2d 835, 839 (N.D. Ill. 2014) (EEOC’s request for information was not relevant where the subpoena was not directed to obtaining information regarding individuals with the same position or similar duties as the former employee, but instead it sought highly sensitive medical information of every employee who was required to submit to a fitness for duty exam).

[4] Whether a subpoena is unduly burdensome turns on the nature of the materials sought and the difficulty the employer will face in producing them. See Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 387 (2008).