Josh Van Kampen Quoted in Law360 Article on Gender Discrimination & The EEOC

EEOC May Step Up Investigation Requests After 9th Circuit Win

Law360, New York (October 28, 2015, 11:18 PM ET) — A Ninth Circuit ruling Tuesday requiring a company accused of gender discrimination to give the Equal Employment Opportunity Commission the personal information of employees who took a strength test may embolden the agency to pursue more aggressive investigations and raises privacy concerns, management-side attorneys say.

In the wake of the ruling, the EEOC will be a lot more aggressive in seeking such information and in filing administrative subpoenas, as well as in filing lawsuits to enforce them, Michael Droke, a partner with international law firm Dorsey & Whitney LLP, told Law360 Wednesday. As a result, he said, investigations conducted by the agency will be a lot more expensive for the company facing allegations, and, he added, employers will likely face additional claims.

“Employers are more likely to be required to submit contact information for applicants or employees, which allows the EEOC to contact them, with the risk of increasing the number of charges that result,” Droke said.

In a precedential opinion, the appeals court found that the EEOC can force companies to hand over personally identifiable information about employees, known as “pedigree information,” in the course of an investigation.

Specifically, the three-judge panel held that Arizona’s federal court erred in refusing to compel grocery supply chain company McLane Co. Inc. to produce the so-called pedigree information, including names, Social Security numbers, addresses and telephone numbers of applicants and employees who took a strength test, saying the information was, in fact, relevant to the EEOC’s investigation.

The appeals court said that the question was not whether the evidence sought by the EEOC would tend to prove a charge of unlawful discrimination, but rather, whether it would help the agency determine if reasonable cause exists to believe that the charge is true, adding that the relevance standard in this context is much broader than it would be at trial.

While McLane handed the EEOC each test taker’s gender, job class, reason for taking the test and score received, it refused to give up the pedigree information, and the agency followed up with a subpoena enforcement action. The EEOC is investigating a sex discrimination claim filed against the company by a former employee who was fired when she failed to pass the strength test after returning to work from maternity leave.

The EEOC initially began its investigation at the Arizona subsidiary where the employee worked and eventually expanded its scope to include the company’s facilities nationwide.

Jonathan Krause, a partner at Klehr Harrison Harvey Branzburg LLP, said the ruling will make it more difficult for employers who are subject to an expanded EEOC charge to protect the personal information of employees who are not the claimant.

“I think the ruling is one of several in recent years that makes it more difficult for employers to challenge these administrative subpoenas where the EEOC is looking for personal identifier information from current or former employees that may not have any interest in being involved in the charge and whose personal information may not even be relevant to the underlying claim that’s being investigated,” Krause said.

His concern, he added, is that the decision takes an expansive view of what the EEOC is entitled to seek. Given concerns about privacy and data breaches, he said he wonders whether the agency should be seeking the identifier information at the early stage of the investigation or whether it would be better to evaluate the data first and then determine what personal identifier information is needed, if any.

U.S. Circuit Judge Milan D. Smith Jr. raised similar privacy concerns in a brief concurring opinion, saying it may be that the EEOC’s insistence on obtaining Social Security numbers that could be used to steal the identity of employees “will endanger the very employees it seeks to protect.” The judge, who did not elaborate on why he concurred, suggested that it would be wise for the EEOC to take such privacy concerns into account.

“While we, as a court, are not in a position in this case to weigh the concerns present in any particular data gathering and storage protocol, the EEOC would be well advised to consider these issues in the collection of data in this case,” Judge Smith wrote.

He noted that the 1990 ruling on which the majority relied — University of Pennsylvania v. EEOC — predates what he called the “rash of ‘data breach’ incidents that plague a world interconnected by computers.”

Plaintiff-side attorney Josh Van Kampen of Van Kampen Law PC, on the other hand, said the ruling could be “a Swiss army knife” for plaintiffs’ attorneys, noting that it could have a broader ripple effect outside of EEOC subpoena enforcement actions and will be helpful, primarily in discovery disputes and in motions to compel. He said employers will argue that the ruling is unique to such actions, but called that “wishful thinking.”

The ruling recognizes at its core the need for the EEOC and, by extension, plaintiffs to pick up the phone and call former employees who might have information that’s relevant to the case, Van Kampen said.

It also rejected the notion that the EEOC has to take an employer’s word and dismissed McLane’s arguments that it was acting benevolently to protect the privacy interests of its employees, Van Kampen said.

Moreover, he said, the appeals court recognized that a Social Security number is necessary information for tracking a person down, noting that the decision gives plaintiffs attorneys ammunition to say that Social Security numbers are part and parcel of contact information. They’re helpful in finding people who have moved and changed addresses, he explained.

“I think any plaintiff attorney arguing or briefing a motion to compel involving witness contact information should absolutely cite McLane, especially where Social Security numbers are requested,” he said.