Unpublished Disposition, 885 F.2d 875 (9th Cir. 1989)

MEMORANDUM^* 

The Equal Employment Opportunity Commission (EEOC) brought an action in the U.S. District Court for the Central District of California to enforce an administrative subpoena. The district court ordered Sears to respond to all but one of the items requested in the subpoena, ruling that Request No. 8 was overbroad. The EEOC appealed. In a May 10, 1989 order, we remanded to the district court for a more complete statement of the factual findings and rationale underlying its decision. After reviewing the district court's supplemental order, and the parties' supplemental briefs addressing that order, we conclude that we must reverse.

FACTS

The charges underlying this subpoena enforcement action were filed with the EEOC on May 11, 1987 by three Hispanic aliens. The charging parties claimed that Sears discriminated against them on the basis of national origin by refusing to employ them because they did not possess "green cards."

The EEOC notified Sears of the charges on May 12, 1987, and undertook a preliminary investigation. On May 22, 1987, Sears filed a written response to the charges, stating that its actions were based on the company's policy requiring applicants and newly hired employees to provide documentation that they may lawfully be employed. Sears also pointed out that its hiring policy prohibiting the employment of undocumented aliens had been modified in response to May 1, 1987 INS regulations permitting employers to hire undocumented aliens between May 1, 1987 and November 1, 1987 if the alien attested that he or she was eligible for resident status and intended to seek legal residency under the amnesty provisions of the Immigration Reform and Control Act of 1986 (IRCA). Sears hired the charging parties on, respectively, May 13 and 14, 1987.

On June 12, the EEOC sought additional information in order to determine whether Sear's documentation policy had been applied more stringently to Hispanics, or whether the policy had a disparate impact on Hispanics. On July 6, 1987, Sears filed an incomplete response to the June 12 request, and on August 7, the EEOC issued an administrative subpoena for nine categories of information relating to its investigation. The item at issue in this case, Request No. 8, directed Sears to " [p]rovide the following for all applicants for positions at [Sear's] warehouse(s) since November 6, 1987: (a) name; (b) national origin; (c) date applied; (d) date hired, if applicable; (e) reason for rejection, if applicable; and, (f) copy of application(s)."

Sears petitioned the EEOC to revoke or modify the items requested, asserting, inter alia, that the EEOC lacked jurisdiction.¹  Sears also argued that Request No. 8 sought irrelevant information, was overbroad and unduly burdensome, and would invade the applicants' right to privacy. On September 15, 1987, the EEOC declined to revoke the subpoena, but modified it slightly. Sears still refused to respond, and on January 26, 1988, the EEOC filed this action seeking enforcement of the subpoena. The district court ordered Sears to respond to all requests except Request No. 8, which it concluded was overbroad and violated the applicants' right to privacy. The EEOC appeals this ruling.

DISCUSSION

In EEOC v. Children's Hosp. Medical Center, 719 F.2d 1426 (9th Cir. 1983) (en banc), this court announced the approach a court must take in deciding whether to enforce an administrative subpoena. We stated:

The scope of the judicial inquiry in an EEOC or any other agency subpoena enforcement proceeding is quite narrow. The critical questions are: (1) whether Congress has granted the authority to investigate; (2) whether procedural requirements have been followed; and (3) whether the evidence is relevant and material to the investigation.

Id. at 1428. If the agency is able to demonstrate that these requirements are met, the court should enforce the subpoena unless the party challenging enforcement can establish that the subpoena is unreasonably overbroad or unduly burdensome. EPA v. Alyeska Pipeline Serv. Co., 836 F.2d 443, 446 (9th Cir. 1988).

Although the district court concluded that the EEOC had the authority to investigate, and that the procedural requirements were met, it ruled that request No. 8 was, at best, of marginal relevance to the charges filed with the EEOC, and that the request therefore was overbroad. This ruling fails to address the EEOC's asserted need for these materials, and must be reversed.

In analyzing whether the EEOC's Request No. 8 should be enforced, we must remember that the scope of judicial inquiry into an administrative subpoena enforcement proceeding is narrow, Children's Hospital, 719 F.2d at 1428, and the relevance requirement is to be interpreted broadly. EEOC v. Shell Co., 466 U.S. 54, 68-69 (1984). This, the district court failed to do. While it correctly noted that the requested employment application forms do not contain information sufficient to establish that Sears engaged in discriminatory employment practices,²  the EEOC has persuasively demonstrated that through the requested forms it can obtain some of the information necessary for it to fulfill its statutory duty to investigate the charges made against Sears. The requested information would enable EEOC to identify and interview other applicants to determine whether Sears applied its documentation policy differently to persons of Hispanic origin. EEOC's ability to contact other applicants, Hispanic and non-Hispanic, is essential to its ability to determine whether Sears's documentation policy, in practice, was discriminatory. In that sense, the information is highly relevant. The district court's extensive analysis does not even address this argument, and therefore is fatally flawed.

Because the district court underestimated the relevance of the requested information, its conclusion that the request was overbroad is wrong. The district court did not find that the request covered too lengthy a time period, or too wide a geographic area. The primary basis for its ruling was the purportedly limited relevance of the materials. In light of the deference to be afforded the agency in determining the information it needs to perform its investigatory function, and the showing of need made by EEOC, we conclude that the district court abused its discretion in finding the request to be overbroad.

The district court also concluded that release of the requested information would violate the applicants' right to privacy under Art. I, Sec. 1 of California's constitution. This argument, which is based largely on the district court's erroneous view that the applications contain no relevant information, is without merit. The applicants, themselves, possess information relevant to the EEOC's investigation. Because Congress has authorized EEOC access to relevant material, EEOC v. Shell Oil, 466 U.S. at 68, whatever state law privacy rights are implicated must yield to the EEOC's power to vindicate federal interests in preventing discrimination in employment. See U.S. Const. Art VI, cl. 2 (supremacy clause).

The district court also suggested that enforcement would violate privacy rights secured by the United States Constitution. This argument is similarly without merit. Neither the district court nor Sears has pointed to authority establishing a federal constitutional right against disclosure of information relevant to an investigation authorized by statute. Similar claims have been rejected in other circuits. See, e.g., EEOC v. Univ. of New Mexico, 504 F.2d 1296, 1303 (10th Cir. 1974) (enforcement of administrative subpoena with respect to sensitive and confidential information contained in personnel files is not barred by right to privacy under fourth amendment); EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 312 (7th Cir. 1981) (confidentiality of material sought does not justify refusal to enforce subpoena). This claim has even less force than those rejected in University of New Mexico and Bay Shipbuilding, because there appears to be no information on the forms of a particularly sensitive and confidential nature.

We remand to the district court with direction to enforce the subpoena.

REVERSED and REMANDED.