Amicus Curiae Brief — McLane Co. v. Equal Emp't Opportunity Comm'n, 137 S. Ct. 30 (2016) (No. 15-1248)

REFS No. 15-1248

IN THE

Supreme Court of the Gnited States

MCLANE COMPANY, INC.,

Petitioner,

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF PETITIONER

RAE T. VANN

MICHAEL P. BRACKEN

Counsel of Record

NT LAKIS, LLP

Suite 400

1501 M St., N.W.

Washington, DC 20005

(202) 629-5608

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

May 2016

ee

WiLSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ................cccseesceeeeeees

INTEREST OF THE AMICUS CURIAE............

STATEMENT OF THE CASE ................-s00eeeeees

SUMMARY OF REASONS FOR GRANTING

REASONS FOR GRANTING THE WRIT..........

REVIEW OF THE DECISION BELOW IS

NECESSARY TO PROVIDE CLARITY ON

ISSUES OF SUBSTANTIAL IMPORTANCE

TO THE EMPLOYER COMMUNITY ................

A. The Ninth Circuit's Decision Below Is

Contrary To Title VII’s Plain Text And

This Court’s Decision In EEOC v. Shell

B. The Ninth Circuit’s Ruling Is At Odds

With Other Circuits That Have

Interpreted Shell Oil As Limiting The

Scope Of An EEOC Inquiry To Matters

Relevant To The Specific Charge Being

BE siiscuieierinsidiinstnecciiniesineihentnnediiacenmemtaniiales

C. The Decision Below Increases Signifi-

cantly The Risk Of Disclosure Of

Confidential Information And Resulting

Irreparable Harm To Employers And

SII. cisitiuinttnidnasscniaadianioaiammaaiiieanties

(i)

11

ii

TABLE OF CONTENTS—Continued

Page

D. The EEOC’s Increasingly Aggressive

Investigation And Enforcement Philoso-

phy Reinforces The Need To Clarify The

Limited Scope Of Its Subpoena Authority. 17

ET sncisinvisnnodeiaidesinaniiettnaiiondes \onsaibatennis 21

TABLE OF AUTHORITIES

FEDERAL CASES Page(s)

Burlington Northern & Santa Fe Railway

v. White, 548 U.S. 53 (2006) ..................... 3

Desert Palace, Inc. v. Costa, 539 U.S. 90

II oididl chine cieepeanensentaaaniesicatadtbbiiduedlgantemumtets 3

EEOC v. Bailey Co., 563 F.2d 439 (6th Cir.

HEI acsiiteclnisudclinciocdeniitichesaiadanaibattatmiediamnsialienin 10, 18

EEOC v. Ford Motor Credit Co., 26 F.3d 44

ESS er ene Soree ee 14

EEOC v. Freeman, 778 F.3d 463 (4th Cir.

IIIT ccichasealictnscnatis eeligtlbtelvesteiesiaitdadiiieialsieiasaanhadiniscialinaii 19

EEOC v. Great Steaks, Inc., 667 F.3d 510

aR Ire am eae 18

EEOC v. HomeNurse, Inc., 2013 WL

5779046 (N.D. Ga. Sept. 30, 2013)........... 19

EEOC v. Kronos Inc., 620 F.3d 287 (3d Cir.

I ihtiianicisiciDicnteiadeunasiet a ncscedvatcabedldtebintiteadin 11,19

EEOC v. Peoplemark, Inc., 732 F.3d 584

I a cemicneiiaiaie 19

EEOC v. Royal Caribbean Cruises, Lid.,

771 F.3d 757 (11th Cir. 2014)................... 11,19

EEOC v. Shell Oil Co., 466 U.S. 54 (1984) passim

EEOC v. Southern Farm Bureau Casualty

Insurance Co., 271 F.3d 209 (5th Cir.

EEOC v. Technocrest Systems, Inc., 448

F.3d 1036 (8th Cir. 2006)...........c.c0ccccceeseee 15

iv

TABLE OF AUTHORITIES—Continued

Page(s)

EEOC v. TriCore Reference Laboratories,

493 F. App’x 955 (10th Cir. 2012) ............ 19

EEOC v. United Air Lines, Inc., 287 F.3d

ee ES SE eescccsesencaetenssnies 10, 11, 12, 19

EEOC v. U.S. Steel Corp., 2013 WL 625315

C28. 9 8 8 ees 19

EEOC v. University of Pennsylvania, 493

Eas hole rere 8

EEOC v. West Customer Management

Group, LLC, 2014 WL 4435980 (N.D. Fla.

RR ES AR RR te 19

Gross v. FBL Financial Services, Inc., 557

EN REE SRE PETES RRS Ree er 3

Mach Mining, LLC v. EEOC, 135 S. Ct.

a 3

Venetian Casino Resort, L.L.C. v. EEOC,

409 F.3d 359 (D.C. Cir. 2005)................... 16

FEDERAL STATUTES

Freedom of Information Act,

Be is Sr I OI aicisccccsccscsennnssosesscuses 15

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 20006 et seq. ..................20000 passim

42 U.S.C. § 2000e-2(aN(1)............ccccceeccccecseers 8

I I viiicenccihnsdcncsacsudcteiesesnciie 7

42 U.S.C. § 200D]-B(b)................ccccccesevoreeeees 8

ls Be vi ivncscsvccssecoseenetgecvnanccdenacss 9

42 U.E.C. § BOD S-Bla)..........ccccceeccccesesersseseess 8,9

Vv

TABLE OF AUTHORITIES—Continued

LEGISLATIVE HISTORY Page(s)

EEOC: An Agency on the Wrong Track?

Litigation Failures, Misfocused Priori-

ties, and Lack of Transparency Raise

Concerns About Important Anti-

Discrimination Agency, U.S. Senate

Committee on Health, Education, Labor,

and Pensions, Minority Staff Report

ELLE 20

OTHER AUTHORITIES

Donald R. Livingston, EEOC Litigation

and Charge Resolution (BNA 2005)......... 18

EEOC, Effective Position Statements .......... 15, 16

EEOC Compliance Manual, Section 26:

Selection and Analysis of Evidence,

§ 26.3 Selection of Records, 2006 WL

4673113 (Aug. 2009 & Supp. 2016).......... 15

EEOC Con -iance Manual, Section 26:

Selection and Analysis of Evidence,

§ 26.9 Records Maintained by Employers,

2006 WL 4673119 (Aug. 2009 & Supp.

SI ist oscadisteheaidnimabaaiaepeibadnicinieadsaiiaion 14

EEOC Compliance Manual, Section 83:

Disclosure of Information in Charge Files

I sia hsccset dices depuncmatebeinianhisisienidaets 15

EEOC Compliance Manual, Section 83:

Disclosure of Information in Charge

Files, § 83.6(a) Security of Files, Copies

Made by Others (May 2016)..................... 16

vi

TABLE OF AUTHORITIES—Continued

Page(s)

EEOC Compliance Manual, Section 602:

Evidence, § 602.4 Quality of Evidence,

2006 WL 4672676 (Aug. 2009 & Supp.

FID occeconccoccoccesnssesnesecnipesneuniani aan

EEOC, Fiscal Year 2015 Performance and

Accountability Report..................:.c0.:cceeeees

Press Release, Sen. Lamar Alexander,

Appropriations Committee Advances Bill

Directing EEOC to Focus on “Massive”

Backlog of 76,000 Unresolved Workplace

Discrimination Cases (Apr. 21, 2016) ......

Statement of OPM Press Secretary (Sept.

1B, BRB onccccceccsseecsosssscussinssesnsenienanae

12

20

21

16

IN THE

Supreme Court of the Anited States

No. 15-1248

McLANE COMPANY, INC.,

Petitioner,

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF PETITIONER

The Equal Employment Advisory Council respect-

fully submits this brief amicus curiae in support of the

Pccition for a Writ of Certiorari.'

‘ Counsel of record for all parties received notice at least 10

days prior to the due date of the amicus curiae’s intention to file

this brief. Both parties have consented to the filing of this brief.

Counsel for amicus curiae authored this brief in its entirety. No

counsel for a party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

amicus curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

2

INTEREST OF THE AMICUS CURIAE

The Equal Employment Advisory Council (EEAC)

is a nationwide association of employers organized

in 1976 to promote sound approaches to the

elimination of discriminatory employment practices.

Its membership includes over 250 major U.S.

corporations, collectively providing employment to

millions of workers. EEAC’s directors and officers

include many of the nation’s leading experts in

the field of equal employment opportunity. Their

combined experience gives EEAC a unique depth of

understanding of the practical, as well as legal,

considerations relevant to the proper interpretation

and application of equal employment policies and

requirements. EEAC’s members are firmly committed

to the principles of nondiscrimination and equal

employment opportunity.

All of EEAC’s member companies are employers

subject to Title VII of the Civil Rights Act of 1964 (Title

VID), 42 U.S.C. $§ 2000e et seg. , as amended, and other

federal employment-related laws enforced by the U.S.

Equal Employment Opportunity Commission (EEOC).

As employers, and as potential targets of EEOC

discrimination charge investigations and enforcement

actions, EEAC’s members have a substantial interest

in the issue presented in this matter concerning the

authority of the EEOC to compel the production of

evidence that is irrelevant to resolution of the specific

charge under investigation.

Because of its interest in the application of the

nation’s fair employment laws, EEAC has filed

numerous briefs as amicus curiae in cases before this

Court and the courts of appeals involving the proper

3

construction and interpretation of Title VII and other

federal laws.”

EEAC seeks to assist the Court by highlighting the

impact its decision may have beyond the immediate

concerns of the parties to the case. Accordingly, this

brief brings to the attention of the Court relevant

information that has not already been brought to its

attention by the parties. Because of its experience

in these matters, EEAC is well-situated to brief the

Court on the relevant concerns of the business

community and the significance of this case to

employers.

STATEMENT OF THE CASE

Petitioner McLane Company (McLane) administers

a physical capability test to all new hires, as well as to

current employees returning from medical leaves of

absence. Pet. App. 3. Damiana Ochoa was required to

take the test before being allowed to return to work

from maternity leave. Id. She took and failed the test

three times, and therefore was not permitted to return

to work. Id.

Ochoa subsequently filed an administrative charge

with Respondent EEOC, alleging that use of the test

discriminated against her on the basis of sex

(pregnancy) in violation of Title VII of the Civil Rights

Act of 1964 (Title VID, 42 U.S.C. $§ 2000e et seq., as

amended. Pet. App. 2.

2 See, e.g., EEOC v. Shell Oil Co., 466 U.S. 54 (1984); Mach

Mining, LLC v. EEOC, 135 S.Ct. 1645 (2015); Gross v. FBL Fin.

Sues., Inc., 557 U.S. 167 (2009); Burlington Northern & Santa Fe

Rwy. v. White, 548 U.S. 53 (2006); Desert Palace, Inc. v. Costa,

539 U.S. 90 (2003).

4

As part of its investigation of the Ochoa charge, the

EEOC asked McLane to provide extensive information

about the test, including, for each person who took it:

® name, sex, date of birth, social security

number, and contact information;

e disability status;

e the reason why he or she was required to take

the test;

e test score; and

e reason for termination, if applicable.

Pet. App. 3-4, 20-21. The EEOC’s request for infor-

mation was not limited to the McLane facility where

Ochoa worked, but rather extended to all McLane

facilities nationwide. Id.

McLane challenged the breadth and scope of the

information request. The EEOC responded by issuing

a subpoena, in response to which McLane provided

a database of all individuals who took the test

nationwide by sex, location, position, test date, reason

for the test, score, and (for applicants) whether the test

taker was deemed minimally qualified for the position.

Id. Dissatisfied, the EEOC filed an action in the U.S.

District Court for the District of Arizona to enforce the

subpoena.

In opposition, McLane argued that the EEOC was

not entitled to any disability-related information,

because Ochoa does not claim either to be disabled or

that she was discriminated against because of actual

or perceived disability. Pet. App. 23-26. It also

contended that the additional “pedigree” information

sought by the EEOC, including (among other data)

name, date of birth, social security number, last

known address, and phone number, was not relevant

5

to whether or not use of the test discriminated against

Ochoa because of her pregnancy. Pet. App. 20-21.

Finally, McLane argued that the information pertain-

ing to the “reason for termination” for all those who

took the test was overly broad and unduly burden-

some. Id.

The district court refused the EEOC access to the

disability-related information on the ground that

Ochoa could not state a claim for disability discrimina-

tion. Pet. App. 25-27. The district court also found

that the additional pedigree information sought in this

case — in particular, the names, contact information,

and social security numbers of individual employees —

was not relevant to resolution of the Ochoa charge:

[A]n individual’s name, or even an interview he or

she could provide if contacted, simply could not

“shed light on” whether the [test] represents a tool

of gender discrimination in the aggregate. The

EEOC has provided nothing to the Court to allay

the concerns raised by McLane that such data has

been requested as a means of trolling for possible

complainants.

Pet. App. 29. The district court also declined to require

McLane to produce the “reason for termination”

information. Pet. App. 30-31.

The EEOC appealed the district court’s order

denying enforcement of its subpoena for pedigree and

termination information, but only as to the sex

discrimination claims. Pet. App. 1, 5. It abandoned

the argument that the subpoena should be enforced

because of its purported relevance to suspected

disability discrimination. Pet. App. 5-6.

6

The Ninth Circuit reversed the district court,

enforcing the EEOC’s subpoena for nationwide pedi-

gree information. Pet. App. 15-16. It reasoned that

the information was relevant because it would allow

the EEOC to identify and contact other test takers who

might have information casting light on Ochoa’s

allegations against McLane. Pet. App. 10-14. It

also ruled that information concerning McLane’s

termination of other test takers was relevant, but

remanded on the issue of whether requiring produc-

tion of such information would be unduly burdensome.

Pet. App. 14-16.

After its request for rehearing en banc was denied,

McLane filed a Petition for a Writ of Certiorari with

this Court on April 4, 2016.

SUMMARY OF REASONS FOR

GRANTING THE WRIT

The decision below, which rubber-stamped an

overbroad administrative subpoena for nationwide

data having no relevance to the allegations of the

EEOC discrimination charge being investigated, is

contrary to Title VII's plain text and this Court’s

holding and rationale in EEOC v. Shell Oil Co., 466

U.S. 54 (1984), and is inconsistent with interpreta-

tions of at least three federal courts of appeals. The

lower court’s misapplication of Title VII, as construed

in Shell, will have an immediate and widespread effect

on the conduct of EEOC charge investigation activities

nationwide, to the profound disadvantage of employ-

ers and employees alike. Accordingly, this Court

should grant the petition and reverse the decision

below.

The relevance of an EEOC inquiry must be

inextricably tied to the harm allegedly suffered by the

7

individual charge-filer. This interpretation is most

consistent with Title VII and its requirement that

the charging party be personally aggrieved. 42 U.S.C.

§ 2000e-5. Permitting the EEOC to demand infor-

mation pertaining to issues outside the scope of

the underlying charge also would unfairly deprive

employers — large and small — of the due process

guarantees to which they are entitled. More

importantly, however, unfocused efforts such as these

do little, if anything, to satisfy the EEOC’s obligations

to individual charging parties whose claims are, for all

intents and purposes, left to languish while the agency

pursues bigger “fish.”

Indeed, there has been a steady shift at the EEOC

towards incentivizing staff to seek out claims with

potentially broad-based, systemic implications, which

serves only to increase the agency’s use of fantastically

broad and irrelevant investigative subpoenas, to the

detriment of employer-respondents, as well as to

individual charging parties.

Furthermore, allowing the EEOC to obtain overly

broad and irrelevant employment data, which often

contain highly sensitive information such as employee

social security numbers, unnecessarily increases the

risk that such information will become available to the

public, either through the charging party or as a result

of an unauthorized data breach. At a minimum, when

the EEOC requests sensitive data, the relevance of

and need for the information must be balanced against

the harm that will be suffered if the information

is disclosed. The Court should use this case as an

opportunity to clarify the meaning of Shell Oil in light

of the cybersecurity and data breach concerns that

have become so prevalent in recent years.

8

REASONS FOR GRANTING THE WRIT

REVIEW OF THE DECISION BELOW IS NECES-

SARY TO PROVIDE CLARITY ON ISSUES

OF SUBSTANTIAL IMPORTANCE TO THE

EMPLOYER COMMUNITY

The EEOC is authorized by Congress to enforce Title

VII of the Civil Rights Act of 1964 (Title VID, 42 U.S.C.

§§ 2000e et seg., which prohibits discrimination

against a covered individual “with respect to his

compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-

2(a)(1). Title VII sets forth “an integrated, multistep

enforcement procedure’ that ... begins with the filing

of a charge with the EEOC alleging that a given

employer has engaged in an unlawful employment

practice.” Shell Oil Co., 466 U.S. at 62 (quoting

Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359

(1977) (footnote omitted)); see also EEOC v. Univ. of

Pa., 493 U.S. 182, 190 (1990). Upon the filing of a

charge, Title VII provides that the EEOC “shall make

an investigation thereof ....” 42 U.S.C. § 2000e-5(b).

In conducting discrimination charge investigations,

the EEOC does not possess unfettered discretion to

seek out other forms of discrimination not alleged

by the charging party and outside the scope of its

reasonable investigation of the charging party’s

claims. To the contrary, its authority to compel

the production of evidence is limited to materials

“relevant” to the allegations in the charge. 42 U.S.C.

§ 2000e-8(a). Thus, “unlike other federal agencies that

possess plenary authority to demand to see records

relevant to matters within their jurisdiction, the

EEOC is entitled ... access only to evidence ‘relevant to

9

the charge under investigation.” Sheil Oil Co., 466

U.S. at 64 (citation and footnote omitted) (emphasis

added).

By enforcing a wildly overbroad administrative

subpoena for nationwide data having no relevance to

the allegations of the charge being investigated, the

Ninth Circuit disregarded Title VII’s plain text and

contravened this Court’s admonitions in Shell Oil.

Accordingly, the petition should be granted and the

decision below reversed.

A. The Ninth Circuit’s Decision Below Is

Contrary To Title VII’s Plain Text And

This Court’s Decision In EEOC v. Shell

Oil

The EEOC’s investigative power derives from the

charges that are filed with it. Shell Oil Co., 466 US.

at 64. As such, during an investigation, the EEOC

is only entitled to evidence that is relevant to the

issues raised in the underlying discrimination charge.

42 U.S.C. § 2000e-8. The applicable statutory author-

ity provides:

In connection with any investigation of a charge

filed under section 706 [42 U.S.C. § 2000e-5], the

Commission or its designated representative shall

at all reasonable times have access to, for the

purposes of examination, and the right to copy

any evidence of any person being investigated

or proceeded against that relates to unlawful

employment practices covered by this [subchapter]

and is relevant to the charge under investigation.

42 U.S.C. § 2000e-8(a) (emphasis added).

10

Thus, in vesting the EEOC with primary respon-

sibility for enforcing Title VII, Congress unambigu-

ously restricted the EEOC’s subpoena power to

inspecting and copying evidence relevant to the charge

under investigation. Jd. This “requirement of rele-

vance, like the charge requirement itself, is designed

to cabin the EEOC’s authority and prevent ‘fishing

expeditions.” EEOC v. United Air Lines, Inc., 287

F.3d 643, 653 (7th Cir. 2002) (quoting EEOC v. K-Mart

Corp., 694 F.2d 1055, 1066 (6th Cir. 1982)). As this

Court emphasized in Shell Oil, “Congress did not

eliminate the relevance requirement, and we must be

careful not to construe the regulation adopted by the

EEOC governing what goes into a charge in a fashion

that renders that requirement a nullity.” 466 U.S. at

69.

In this case, the EEOC’s subpoena extends well

beyond the four corners of the Ochoa charge, seeking,

among other things, personal pedigree information

such as social security numbers and dates of birth

about all McLane test takers nationwide. It contains

no meaningful boundaries whatsoever and, if found to

be valid and enforceable as written, essentially would

authorize the agency to launch a full-scale, uncon-

strained audit of myriad employment practices

affecting McLane employees generally.

When the EEOC exceeds its statutory authority by

issuing subpoenas for information pertaining to

matters outside the bounds of the allegations being

investigated, it unilaterally dispenses with Title VII's

statutory requirements, as explained by this Court in

Shell Oil, and robs employers of the basic protections

they afford. EEOC v. Bailey Co., 563 F.2d 439, 450

(6th Cir. 1977). By permitting the EEOC, in seeking

enforcement of its administrative subpoena, “merely

11

to allege that an employer has violated Title VII,”

Shell Oil, 466 U.S. at 72, the Ninth Circuit effectively

has “renderled] nugatory the statutory limitation of

the Commission’s investigative authority to materials

‘relevant’ to a charge,” id., and thereby has thwarted

“Congress desire to prevent the Commission from

exercising unconstrained investigative authority ....”

Id. at 65.

B. The Ninth Circuit’s Ruling Is At

Odds With Other Circuits That Have

Interpreted Shell Oil As Limiting The

Scope Of An EEOC Inquiry To Matters

Relevant To The Specific Charge Being

Investigated

The Ninth Circuit’s decision below also is at odds

with other courts that have addressed this issue. In

EEOC v. Southern Farm Bureau Casualty Insurance

Co., for instance, the Fifth Circuit refused to enforce

an EEOC subpoena seeking information concerning

gender in connection with the investigation of a race

discrimination charge. 271 F.3d 209, 211-12 (5th Cir.

2001). The court observed that the EEOC’s authority

to demand information is not unlimited, but rather

must be based on the specific claims raised in a valid

charge. Id. See also EEOC v. Kronos, Inc., 620 F.3d

287, 300-02 (3d Cir. 2010) (inquiry into potential race

discrimination is not a reasonable expansion of a

disability discrimination charge); EEOC v. Royal

Caribbean Cruises, Lid., 771 F.3d 757, 761 (11th Cir.

2014) (affirming lower court’s decision not to enforce

EEOC subpoena where information sought in sub-

poena, which pertained to employees and applicants

across the globe, would not aid the EEOC in resolving

the disputed issues in the specific charge being investi-

gated); EEOC v. United Air Lines, Inc., 287 F.3d 643,

12

655 (7th Cir. 2002) (refusing to enforce portions of

subpoena that sought information unrelated to charge

of discrimination because “[ajllowing the EEOC to

conduct such a broad investigation would require [the

court] to disregard the Congressional requirement

that the investigation be based on the charge”).

Even the EEOC’s own Compliance Manual counsels

investigators against collecting irrelevant information

and data exceeding the scope of the charging party’s

allegations, instructing them, for example, to collect

only evidence that is both “material to the charge” and

“relevant to the issue(s) raised in the charge.” EEOC

Compl. Man., Section 602: Evidence, § 602.4 Quality

of Evidence, 2006 WL 4672676 (Aug. 2009). Evidence

is material, the agency explains, “when it relates to

one or more of the issues raised by a charge ... or by a

respondent’s answer to it.” Id. at § 602.4(a) Material

evidence. Evidence is relevant “if it tends to prove or

disprove [a material] issue raised by a charge.” Id. at

§ 602.4(b) Relevant evidence.

Accordingly, the manual explains that where the

charging party alleges that the employer denied

“training, assignments, pay increases, retention

rights, transfer, and promotion ... to laid off employees

eligible to retire but made available to younger

employees,” material evidence would include “infor-

mation on [the charging party] and his/her perfor-

mance; information on the ages, positions, and perfor-

mance of laid off employees, remaining employees, and

recalled employees; copies of company benefit plans

and policy statements; any actuarial data used to

support benefit reductions; and testimony” but would

not include “[vjoluminous data ... which has nothing

to do with [the] employment practices [being]

investigated ....” Id. at § 602.4(a) Example 2.

13

The subpoena at issue here seeks a variety of

information and documents pertaining to personally

identifiable and other information for all McLane

employees who took the physical capability test, in-

cluding dates of birth, social security numbers, dates

of application, and dates of hire. These data will do

nothing to shed light upon Ochoa’s Title VII pregnancy

discrimination claim, however, and should be held

beyond the agency’s investigative reach.

Allowing the EEOC to seek out information pertain-

ing to issues outside the scope of the charge being

investigated would discourage employers from provid-

ing thorough and comprehensive responses for fear

that such information likely would trigger an

“expanded” investigation. At worst, such a practice

could lead employers to refuse to provide any infor-

mation requested in connection with a charge inves-

tigation, thereby forcing the EEOC each time to go

through the time-consuming and tedious process of

attempting to compel production of the data it seeks.

C. The Decision Below Increases Signifi-

cantly The Risk Of Disclosure Of

Confidential Information And Result-

ing Irreparable Harm To Employers

And Employees

Most companies understandably are reluctant to

hand over to the EEOC voluminous, confidential

business and employee information that has no

relevance to resolution of issues raised in a pending

charge of discrimination. There are many reasons for

this reluctance, including the fear that the infor-

mation may be given to the charging party (perhaps a

former employee with an axe to grind) and/or become

the casualty of a data breach. Allowing the EEOC to

14

obtain broad categories of sensitive employment data

that are not carefully tailored to elucidate allegations

raised in the specific charge being investigated unnec-

essarily increases the risk that confidential employer

and employee information will become available to a

competitor or to the public. Because Shell Oil was

decided at a time when cybersecurity and data breach

concerns were nonexistent, this Court should use this

case as an opportunity to provide much needed clarity

as to its meaning in this context.

EEOC investigators routinely exceed their authority

by asking employers to hand over confidential and

sometimes highly sensitive business and employee

information during charge investigations, even when

the information has no relevance to the underlying

charge. Disclosure of only marginally relevant em-

ployee data increases the risk that such information

will be disclosed to the charging parties or worse,

accessed by criminals through an unauthorized data

breach.

Depending on the case, the EEOC might demand

that an employer provide information relating to

recruitment, hiring and promotional practices, work-

place policy and procedure, organizational structure

and succession planning, compensation and benefits,

as well as many other employment-related practices

that in one way or another shed light on the company’s

structure and operations. EEOC Compl. Man.,

Sectio.. 26: Selection and Analysis of Evidence, § 26.9

Records Maintained by Employers, 2006 WL 4673119

(Aug. 2009); see also EEOC v. Ford Motor Credit Co.,

26 F.3d 44 (6th Cir. 1994) (EEOC seeking detailed

employment data for all workers employed at respond-

ent’s facility for a period of twelve years, including job

titles, starting grade level and salary, assignments

15

and promotions). Moreover, the agency can (and fre-

quently does) require unrestricted access to electronic

payroll, accounting, and human resource data relating

to specific individuals, entire business units and

work facilities—often, as here, on a company-wide

basis. EEOC Compl. Man., Section 26: Selection and

Analysis of Evidence, § 26.3 Selection of Records, 2006

WL 4673113 (Aug. 2009); see also EEOC v. Technocrest

Sys., Inc., 448 F.3d 1035, 1037 (8th Cir. 2006) (EEOC

requesting “the complete contents of all personnel

files and records” for all technical employees of

the company). These broad requests for data also

can seek sensitive personal information, including

employee social security numbers and other pedigree

information.

Once this information is given to the EEOC, it

becomes part of the investigative file and is subject to

disclosure under the agency’s disclosure rules, which

means that in certain circumstances it can be viewed

by the charging party or witnesses. The EEOC dis-

closes information from case files pursuant to the

Freedom of Information Act (FOIA), 5 U.S.C. §§ 552

et seq., and Section 83 of the EEOC’s Compliance

Manual. See EEOC Compl. Man., Section 83: Disclo-

sure of Information in Charge Files (May 2016). And

while the EEOC is only supposed to release non-

confidential materials to the charging party, under

a recently announced nationwide policy, the agency

has indicated that it will unilaterally decide

whether a document marked by an employer as

“confidential” is sufficiently proprietary to justify

withholding it from a charging party. See EEOC,

ong Position Saatennents, available at https;//

Ey Gas acinaaiatend thet fhe investiontere can

16

and routinely do share confidential business infor-

mation supplied by employers with charging parties

and witnesses in all types of cases as an “investigative

technique” for the purpose of “elicit{ing] more infor-

mation.” See Venetian Casino Resort, L.L.C. v. EEOC,

409 F.3d 359, 362 (D.C. Cir. 2005). Turning over

confidential employer information to an employee or

former employee that may be seeking retribution

carries significant risk.

Setting aside the dangers posed by providing

confidential employer information to charging parties,

there is also a very real concern today over electronic

data breaches. Recent high-profile government agency

data breaches highlight the risks of permitting the

EEOC to maintain vast amounts of proprietary and

sensitive information electronically.* Inadvertent dis-

closure of the sensitive and confidential information

collected by the EEOC during its investigations would

have predictably damaging (and often irreparably

harmful) consequences. And the EEOC currently has

no meaningful process in place to reasonably guard

against the types of massive data breaches that have

resulted in far reaching litigation and harm to a

number of businesses.‘

° See, e.g., ee ne anny Ces. 15, em,

statement-923/ (last visited May 5, 2016) (reporting that a recent

government data breach resulted in theft of personal information

of 21.5 million individuals, including social security numbers and

fingerprint data).

* Indeed, the EEOC’s current written procedures do little to

ensure protection of confidential information that is produced

during investigations. See, e.g., EEOC Compl. Man., Section 83:

peep ee nena tr on dene A mggmae

17

With these risks of disclosure in mind, it is all the

more important for the EEOC’s investigative author-

ity to be appropriately constrained. The EEOC’s

standard practice of requesting voluminous confiden-

tial and sensitive data that have no relevance to

the charge under investigation unnecessarily increases

the amount of information subject to harmful dis-

closure. Proper application of Shell Oil and the Title

VII principles underlying it would minimize the risk

of such threats.

D. The EEOC’s Increasingly Aggressive

Investigation And Enforcement Philos-

ophy Reinforces The Need To Clarify

The Limited Scope Of Its Subpoena

Authority

The EEOC’s disregard for the statutory constraints

on its investigative and enforcement authority is well-

documented, causing harm to employers as weil as

employees. If the decision below is permitted to stand,

the EEOC undoubtedly will continue (even formalize)

the practice of crafting vague and indefinite charges

for the purpose of conducting unfettered “fishing

expeditions” — in direct contravention of its statutory

mandate. See Shell Oil, 466 U.S. at 90 (“Experience

teaches that Government administrative agency

investigations can be prone to abuse [and] are likely

Security of Files, Copies Made by Others - Offices may

require requesters to make special arrangements to

have copies made by persons other than EEOC (or its

contractor's) staff. Persons granted access to files are not

normally permitted to remove files from EEOC’s (or its

contractor’s) premises. District Directors or designees may

allow a file to be copied away from the premises in unusual

circumstances if proper safeguards are observed to prevent

loss or mutilation of the file.

18

to be conducted more reasonably, more carefully, and

more fairly, when the concerned parties are ade-

quately notified of the causes of the investigation that

are in progress”) (O’Connor, J., concurring in part,

dissenting in part).

Such a result would deny employers a meaningful

opportunity to respond to charges and unfairly rob

them of the “due process guaranties” to which they are

entitled. EEOC v. Bailey Co., 563 F.2d 439, 450 (6th

Cir. 1977) (citation omitted).° This case thus presents

the Court with an opportunity to clarify Shell Oil

in light of the EEOC’s recent, notoriously aggressive

enforcement tactics which have become standard

practice in recent years.

The EEOC holds a highly leveraged position over

the employers it investigates, which is no surprise,

given the “vast disparity of resources between the

government and private litigants.” EEOC v. Great

Steaks, Inc., 667 F.3d 510, 519 (4th Cir. 2012). As

noted, the EEOC routinely capitalizes on its position

of advantage by serving overly broad requests for

information that are unconnected to the particular

allegations of the charge under investigation. See, e.g.,

Southern Farm Bureau, 271 F.3d at 211-12; Kronos,

® The EEOC has a variety of statutory tools at its disposal for

the purpose of investigating and eradicating employment dis-

crimination. The very purpose of a Commissioner charge,

for example, is to enable the agency to investigate possible

discrimination in situations where either no individual charge

has been filed or where discrimination is believed to be “more

widespread than the specific allegations made by an individual

charge.” Donald R. Livingston, EEOC Litigation and Charge

Resolution 243-44 (BNA 2005). The EEOC should not be

permitted to circumvent the statute’s requirement that it obtain

a Commissioner charge where, as here, it otherwise lacks the

authority to investigate allegations not contained in the charge.

19

620 F.3d at 300-02; Royal Caribbean Cruises, 771 F.3d

at 761; United Air Lines, 287 F.3d at 655. An employer

served with such a request often will find itself in an

untenable position of either incurring substantial

costs to produce the requested irrelevant information

or incurring substantial costs to fight, just to risk

losing and then being compelled to incur the costs to

produce the documents anyway. While the EEOC

often targets large companies, employers with as few

as 15 employees are subject to the laws the EEOC

enforces, and thus also are potential targets of

these abusive information requests. In one case, the

EEOC was criticized for its “highly inappropriate” and

“dogged pursuit” of a small business whereby it sought

extremely broad categories of documents that were

unrelated to any aggrieved person’s charge of

discrimination. EEOC v. HomeNurse, Inc., 2013 WL

5779046, *14 (N.D. Ga. Sept. 30, 2013). The district

court refused to enforce the subpoena, concluding that

the agency’s actions in that case “constituteld] a

misuse of its authority.” Id.

A number of courts have sanctioned the EEOC for

prosecutorial abuses in similar contexts. See, e.g.

EEOC uv. Freeman, 778 F.3d 463, 472-73 (4th Cir.

2015); EEOC v. Peoplemark, Inc., 732 F.3d 584, 616

(6th Cir. 2013); EEOC v. TriCore Reference Labs.,

493 F. App’x 955, 960-61 (10th Cir. 2012); EEOC uv.

West Customer Management Group, LLC, 2014 WL

4435980, at *1 (N.D. Fla. Sept. 8, 2014); EEOC v. U.S.

Steel Corp., 2013 WL 625315 (W.D. Pa. Feb. 20, 2013).

The EEOC also has garnered considerable criticism

from members of Congress, who have taken the

agency to task for among other things “pursuing

20

many questionable cases through sometimes overly

aggressive means.”

In recent years, the EEOC has put a high priority

on pursuing systemic litigation where alleged dis-

crimination has a potentially broad impact on an

industry, profession, company or geographic area. In

fact, the agency requires its field offices to ensure that

a specific percentage of its lawsuits is systemic in

nature. See EEOC, Fiscal Year 2015 Performance and

Accountability Rep. 22 (Systemic Cases — Performance

Measure 4).’ These systemic case quotas serve to

further encourage the EEOC to disregard the statu-

tory limits on its investigative authority by demanding

overly broad company-wide information that has no

connection to the charge under investigation.

However, these self-imposed systemic case quotas

have no statutory basis, and undermine effective

enforcement of employment discrimination laws by

diverting valuable resources away from investigations

of ripe claims contained in a filed charge, and towards

unbridled fishing expeditions in search of class-based,

systemic claims. Indeed, “the [EEOC has] gone far

afield of [its] critical task, allowing its massive backlog

of unresolved cases to climb to more than 76,000,

while pursuing cases where there is no complaint ....”

Press Release, Sen. Lamar Alexander, Appropriations

& See EEOC: An Agency on the Wrong Track? Litigation

Failures, Misfocused Priorities, and Lack of Transparency Raise

Concerns About Important Anti-Discrimination Agency, U.S. Sen.

Comm. on Health, Educ., Labor and Pensions, Minority Staff

_ wth ar re wc see ry

ix.pdf ast visited May 5, s18).

” Available at https://www.ceoc.gov/eeoc/plan/upload/2015par.

pdf (last visited May 5, 2016).

21

Committee Advances Bill Directing EEOC to Focus on

“Massive” Backlog of 76,000 Unresolved Workplace

Discrimination Cases (Apr. 21, 2016).

CONCLUSION

For all of the foregoing reasons, the Equal

Employment Advisory Council respectfully requests

the Court grant the Petition for a Writ of Certiorari

and reverse the decision below.

May 2016

Respectfully submitted,

RAE T. VANN

MICHAEL P. BRACKEN

Counsel of Record

NT LAKIS, LLP

Suite 400

1501 M St., N.W.

Washington, DC 20005

mbracken@ntlakis.com

(202) 629-5608

Attorneys for Amicus Curiae

Equal Employment Advisory

Council