Skip to Main Content

Keeping you informed

Ninth Circuit Gives EEOC Broad Access to Employee Personal Information During Charge Investigation

    Client Alerts
  • November 09, 2015
When investigating administrative charges of discrimination, the Equal Employment Opportunity Commission often sends employers Requests for Information that seek details about employees similarly situated to the charging party. A recent decision from the Ninth Circuit Court of Appeals confirms the EEOC’s broad authority to obtain even sensitive personal information about employees during the investigation process.

In EEOC v. McLane Co., the agency initiated a systemic investigation of the defendant’s return to work practices, focusing on a mandatory strength test that the original charging party alleged had a disparate impact against female employees. As part of its investigation, the EEOC requested information about all employees who had taken the test, including addresses, telephone numbers and Social Security numbers. The employer refused, claiming that it had provided the EEOC with test results for each employee, and that the personal information was irrelevant to investigation of disparate impact.

The Ninth Circuit disagreed, affirming the EEOC’s broad authority to obtain employee information during administrative charge investigations. The court noted that the relevance standard imposed under Title VII is very broad, and does not require the EEOC to demonstrate necessity in order to justify the information request. The court also rejected the employer’s contention that the agency does not need personal information to determine disparate impact. Finally, the Ninth Circuit concluded that recent federal government personal identifying information gaffes did not remove the EEOC’s ability to seek Social Security numbers.

Employers faced with broad information requests during an EEOC investigation have very limited grounds for refusing to provide information deemed even possibly or tangentially relevant to the charge. Instead of seeking court intervention, employers may be better served by negotiating burdensome or sensitive requests with the agency, and seeking a compromise that allows the EEOC to complete its work with minimal disruption to the employer’s business.