EEOC May Obtain Private (And Arguably Unnecessary) Employee Information

Employers served with an Equal Employment Opportunity Commission (EEOC) subpoena requesting private employee information – regardless of its arguable relevance – may nevertheless be compelled to respond, according to a decision from late last year by one of the country’s most influential appellate courts. In the decision, the United States Court of Appeals for the Ninth Circuit permitted the EEOC to largely define its own need for employee data based on an expansive view of what information might be relevant to the its investigation.

The decision has several implications for employers. First, it casts significant doubt over whether employers may assert privacy-related objections to requests for information during the course of an EEOC investigation and whether employer claims that the information sought by the EEOC has no relevance will have any meaningful legal validity. It also suggests that the EEOC may be even more emboldened to pursue private information that employers might feel is irrelevant because the courts will give the Commission significant latitude to decide what it may or may not need.

In the case, the EEOC had commenced a gender discrimination investigation against an employer based on the use of a strength test for new employees and employees returning from leaves of absence. During the investigation, the employer had voluntarily provided significant information regarding use of the test and how it had affected employees of all genders. However, the employer objected to the disclosure of “pedigree information” – such as an employee’s (or applicant’s) name, address, telephone number, and social security number – claiming that such information intruded upon individual privacy and did not bear on the question of whether the test disparately affected employees of one gender over another. A federal judge in Arizona initially agreed and refused to enforce a subpoena, but the Ninth Circuit overturned that conclusion. In so doing, the appellate court noted that even though Title VII only permits the EEOC to collect information “relevant to the specific charge under investigation,” it concluded that the EEOC’s desire to contact other individuals to explore their subjective beliefs about the test might ultimately help the agency to resolve the question of whether the test resulted in gender discrimination.

Of particular concern is the Ninth Circuit’s expansive statement that, “The EEOC’s need for the evidence – or lack thereof – simply does not factor into the relevance determination,” suggesting that the agency can gain access to very tangential information merely by claiming some thin relevance the requested information might have on the investigation. Such an interpretation of what the EEOC may demand might motivate the agency to pursue all manner of information, raising the specter of the EEOC using a charge alleging a narrow type of discrimination to gain access to information about an employer’s practices. This does appear consistent with the EEOC taking an ever-more aggressive view of what it may requires to disclose; just last week the EEOC announced the intention to require employers to annually disclose pay data so it can begin affirmatively looking for examples of pay discrimination – even when no such charge of discrimination has been filed.

Employers that have dealt with EEOC investigations may have had their own experiences with the breadth of information requested by the Commission and had similar concerns about the scope of information sought. The recent Ninth Circuit decision suggests that not only will the EEOC continue seeking broad information arguably unrelated to the claims under investigation, but also that courts will likely back the Commission up.