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9th Cir. Allows EEOC to Collect Personal Employee Information

By Casey C. Sullivan, Esq. on November 24, 2015 | Last updated on March 21, 2019

The Ninth Circuit has given the EEOC the go ahead to compel production of so-called "pedigree information" in employment investigations. Pedigree information includes things like an employee's name, Social Security number, address, and telephone number.

The ruling came after the EEOC investigated the McLane Company for gender discrimination after it refused to allow an employee to return to her job following maternity leave. The Commission sought extensive information on employees which McLane refused to provide but which, the Ninth Circuit has ruled, was appropriate and relevant to the investigation.

The Underlying Sex Discrimination Investigation

The court's ruling stems from a 2008 sex discrimination charge filed by Damiana Ochoa against a McLane subsidiary in Arizona. Ochoa had worked for eight years as a cigarette selector with the subsidiary, but after she took maternity leave, it insisted that she pass a strength test before she could return. Ochoa failed and McLane fired her, leading to the EEOC's investigation.

As part of that investigation, the EEOC requested information about all the individuals who took the strength test after a leave. (Strength tests must be job related and, if it disproportionately excludes women, necessary.)

The Commission's request included pedigree information including Social Security numbers and contact information. McLane refused to disclose such information as well as information on test-takers who were terminated. A district court supported their refusal, finding that the EEOC didn't need the information to determine whether McLane had used the strength test to discriminate.

It's Relevance, Not Necessity, That Matters

McLane's arguments didn't go over as well in the Ninth Circuit, however. While the EEOC's investigatory authority under Title VII is more constrained than other government agencies', it does have the right to obtain evidence that is "relevant to the charge under investigation." That relevance standard is broad, especially at the earlier stages of an investigation, the court noted. It embraces "virtually any material that might cast light on the allegations."

Wanting to contact other employees to see if they were similarly discriminated against is certainly a valid way to investigate the claims. And pedigree information is necessary to do so. While McLane had argued that the information is not necessary to the investigation, that's the wrong standard, the court explained. Relevance is all that is needed.

It's a fairly open-and-shut case. The EEOC is investigating potential employment discrimination across many McLane sites; it simply needs basic employee information to conduct that review. But, at least some have raised privacy concerns over the court's "broad reading of relevance."

Orrick's Employment Law and Litigation Blog writes that "the decision did not give much consideration to employee privacy rights" and they're not alone in their concerns. As Judge Milan D. Smith notes in his concurrence, the federal government has a "dismal" record when it comes to "protecting even its own employees' sensitive data." Here, the EEOC will be given essentially everything you need to steal one's identity.

Facing a broad investigation into a suspect employment practice as McClane was, however, makes it hard to believe that employee privacy was their main concern.

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