EEOC v. McLane Co., 2015 WL 6457965 (9th Cir. 2015)

Damiana Ochoa filed a charge with the EEOC alleging sex discrimination (based on pregnancy) in violation of Title VII, when, after s­­he tried to return to her job following maternity leave, her employer (McLane Co.) informed her that she could not come back to the position she had held for eight years as a cigarette selector unless she passed a physical strength test. Ochoa took the test three times but failed to pass and, as a result, her employment was terminated. McLane disclosed that it administers the test to all new applicants and to employees returning from a leave longer that lasts longer than 30 days. Although McLane voluntarily provided general information about the test and the individuals who had been required to take it (gender, job class, reason for taking the test and the score received), it refused to disclose “pedigree information” for each test taker (name, social security number, last known address, telephone number and the reasons why particular employees were terminated after taking the test). In this EEOC subpoena enforcement action, the district court refused to compel production of the pedigree information, but the United States Court of Appeals for the Ninth Circuit reversed that order in this opinion. The Ninth Circuit also vacated the district court’s order denying enforcement of the subpoena’s request for reasons for termination of employees who took the test and ordered consideration by the district court of whether requiring production of such information would in fact be unduly burdensome. See also CVS Pharmacy, Inc. v. Superior Court, 2015 WL 6119412 (Cal. Ct. App. 2015) (trial court abused its discretion by ordering employer to disclose names and contact information of current and former employees to plaintiff who lacked standing to lead class challenging automatic termination policy for employees who failed to work any hours for 45 consecutive days).