Are Equal Opportunity Employers Actually Equal?

By Marra Kassman, J.D. Class of 2018 Touro Law Review  Junior Staff Member

In 2007, Damiana Ochoa took maternity leave from her current position (a cigarette selector) at McLane Sunwest in Arizona.[1] In usual fashion after an individual takes maternity leave, she soon returned to her job to find that she had to pass a physical test, or else she would be terminated from the company.[2] Therefore, in January 2008, Ochoa filed a formal charge with the Equal Employment Opportunity Commission (“EEOC”) alleging that she was discriminated based on her sex “in violation of Title VII of the Civil Rights Act of 1964” against her employer, McLane.[3] The EEOC began its investigation into McLane by ordering an administrative subpoena, which sought information both about employees who took the physical test and general information about the test itself.[4] The District Court held that some of the information that the EEOC sought to obtain from McLane, which was described as pedigree information, was irrelevant and not required to move forward with its investigation in this particular case.[5] The EEOC then appealed to the Court of Appeals for the Ninth Circuit, who reviewed the case de novo and reversed the District Court’s decision.[6] In April 2016, the petitioner, McLane, petitioned the Supreme Court for writ of certiorari, which was granted in September 2016.[7] The case is on the Court’s calendar to be heard for oral arguments on February 21, 2017.[8]

In this case, the main issue is “whether the district court correctly held that some of the information sought by the subpoena is not relevant to the EEOC’s investigation.”[9] The information at issue pertains to employee “pedigree information” which includes a phone number, social security number, name, and last known address.[10] McLane argues that providing this information is not necessary for this case because the company previously provided the EEOC with the employee identification numbers, genders, job description, and score of the test for each employee who previously took the physical exam.[11] McLane argues that since it voluntarily gave the EEOC some information that was necessary, it does not have to provide any further information because it would be irrelevant.[12] However, the governing standard is relevancy, not necessity, so “if the EEOC establishes that the evidence it seeks is relevant to the charge under investigation, we have no warrant to decide whether the EEOC could conduct the investigation just as well without it.”[13] Congress has given the EEOC the power to decide what is relevant in an employment discrimination case, not the actual employer.[14] The court concluded that since “the pedigree information meets the broad standard for relevance, the EEOC is entitled to obtain that information now.”[15]

Even though the Court of Appeals did not agree with McLane’s arguments, one judge did. Judge Smith concurred in the opinion and argued that maybe McLane was simply trying to protect his employees by withholding their personal information.[16] The majority, however, thought that McLane’s arguments lacked merit.[17] It will be up to the Supreme Court in February to decide if it agrees with the majority or the concurrence here, but based on University of Pennsylvania v. EEOC, it is likely that the Court will rule in EEOC’s favor.[18]

In that case, the EEOC brought suit to enforce a subpoena after the University of Pennsylvania failed to release information relating to peer reviews for employees trying to obtain tenure status.[19] There, associate Professor Rosile Tung was denied tenure status in 1985 after the department chairmen sexually harassed her and she was told that the school as not interested in “China related research.”[20] Therefore, Tung sued the University for discrimination on the basis of sex and race.[21] In that case, the Court said that Congress decided on what materials need to be disclosed to the EEOC and that it is not up to the employer’s discretion on what should and should not be disclosed.[22] Even though the University of Pennsylvania case was about the disclosure of peer-reviewed information[23], it is similar to the McLane case in the sense that the company also withheld information from the EEOC.[24]

It is likely that, just like in University of Pennsylvania, the Supreme Court will find that McLane has to disclose withheld information to the EEOC.[25] This will assist the EEOC in its investigation into the company and of Ochoa’s claims against it.

[1] U.S. E.E.O.C. v. McLane Co., 804 F.3d 1051, 1054 (9th Cir. 2015).

[2] Id.

[3] Id. at 1053; 3 U.S.C. § 411 (1997).

[4] U.S. E.E.O.C., 804 F.3d at 1053.

[5] E.E.O.C. v. McLane Co., WL 5868959 *6 (D. Ariz. 2012).

[6] U.S. E.E.O.C., 804 F.3d at 1059.

[7] McLane Co. v. E.E.O.C., 137 S. Ct. 30 (2016).

[8] Ballotpedia, McLane v. EEOC,,_October_term_2016-2017#tab=Cases_by_sitting (last visited Jan. 6, 2017).

[9] U.S. E.E.O.C., 804 F.3d at 1053.

[10] Id.

[11] Id.

[12] Id. at 1057.

[13] IdSee University of Pennsylvania v. EEOC, 493 U.S. 182, 188 (1990).

[14] University of Pennsylvania, 493 U.S. at 193.

[15] U.S. E.E.O.C., 804 F.3d at 1057.

[16] Id. at 1059.

[17] Id. at 1057.

[18] Id. See University of Pennsylvania, 493 U.S. at 188.

[19] University of Pennsylvania, 493 U.S. at 188.

[20] Id. at 185.

[21] Id.

[22] Id. at 188.

[23] Id. at 183.

[24] U.S. E.E.O.C., 804 F.3d at 1054.

[25] Id. See University of Pennsylvania, 493 U.S. at 182.



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