F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U.S. E Q U

A L E M P L O Y M E

N T O P P O R T U N I T Y C O M M I S S I O N , Plaintiff-Appellant

,

v

.

M C L A N E C O M P A

N Y , I N C ., Defendant-Appellee

. N o. 13-15126

D.C. No. 2:12-cv-02469- GMS

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na G. Murray Snow, District J u dg e, Presiding

Arg ued and Submitted March 12, 2015—San F rancisco, California

F iled October 27, 2015

B e fore: J . Clifford W allace, Milan D. Smith, J r., and Paul J . W atford. Circuit J udg es.

O pinion by

J udg e W atford; Concurrence by

J udg e M. SmithEEOC V

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SUMMARY *

Subpoena / EEOC

The panel reversed in part and vacated in part the district court’s o rder that g ranted in part and denied in part the E q ual Employ me n t O p p o r t u n i t y C ommission’s request for enforcement of an a dministrative subpoena issued as part o f an EEOC investig a tion of a sex discrimination claim.

The panel h e l d t hat the district court erred in refusing to compel p roduction o f p e dig ree information (name, social security number, last known a d dress, and telephone number) of other a pplicants and employ ees who took a qualify ing test b e c a u se the information was relevant to the EEOC’ s inve stig ation. The panel vacated the district court’s order d e n y ing e nforcement of the subpoena’s request for th e

reasons for termination of o ther employ ees, and remanded so that the district court c o uld r ule on whether requiring the employ e r to p roduce that information w ould in fact b e unduly burdensome.

J udg e M. Smith concur

r e d i n the majority opinion but
wrote separately to discuss the employ er’s sug g e stion that it

was justified in withholding its employ ees’ Social Security numbers to p rotect their p r i v a c y interests. J u d g e M. Smith noted that the EEOC’s insistence on obtaining Social Security numbers that could be used to steal a n employ ee’s identity will endang er the very

employ ees it soug ht to protect.

* T h is s u m

m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.EEOC V

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COUNSEL

J ames Tucker (arg

ued), Attorney
, P. D avid L opez , G e neral Co u n s el, L orraine C. Davis, Acting Associate General Counsel, Daniel T. Vail, Acting Assistant General Cou n s e l, U

. S

. E q u a l E m p l o y

m e n t Op p o r t u n i t y C o m m i s s i o n , W a shing ton, D.C., for Plaintiff-Appellant.

Ronald E. Manthey (arg

ued) and Ellen L

. Perlioni, Morg an, L ewis & B ockius L L P, Dalla s , T e x as; J oshua R. W oodard and Ashley T. K a sarjian, Snell & W ilmer L .L .P., Phoenix

, Ariz ona, for Defendant-Appellee.

OP INION

W A TF ORD, Circuit J udg e:

This is a subpoena enforcement action b r oug ht by the Equal E m p l o y m e n t O p p o r

t u n i t y C o m mission (EEOC) ag ainst McL ane Company

. The EEOC is investig ating a charg e o f

sex discrimination f

iled ag ainst McL ane by one of its f ormer employ e es, who was fired when she failed to pass a streng th
test after returning from maternity leave. The subpoena seeks information a

bout the co mpany ’ s use of the test and the individuals who h ave been r equired to take it. The main issue before us is whether the district court correctly h eld that some of the in f o r m a t ion soug ht by the subpoena is not relevant to the EEOC’s investig a tion. The court refused to enforce that portion of the subpoena, and the EEOC has appealed.EEOC V

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I

I n J a nuary 2008, Damiana Ochoa, a former e mploy ee o f

a McL ane subsidiary in A r i z ona, f iled a charg e with the EEOC alleg ing sex discrimination ( based on preg nancy ) in violation of Title VI I of the Civil Rig hts Act of 1964. Ochoa alleg ed that w hen she tried to return to work after taking maternity leave, McL a

ne informed her that she could not

resume her position as a cig arette selector—a p o s i t ion she had held for eig h t y e ars—u n l e s s she passed a phy sical capability streng th test. O ch o a a l leg ed that the company requires all n ew employ ees and a l l e mploy ees returning to work f ollowing a medical leave to take the test. Ochoa took the test three times but fai l e d t o r eceive a passing score on each occasion. B ased on her failure to pass the test, McL ane terminated her employ

ment.

The EEOC notified McL ane of Ochoa’s charg e and b eg an

an investig ation. During the early stag es of the investig ation, McL ane disclosed that it uses the streng th test a t its facilities nationwide for all positions that are classif i ed as phy sically demanding

. All new applican t s for such positions a nd employ e es returning to such positions from a l e ave long er than 30 d ay s a

re required to pass the test as a c ondition o f employ ment.

McL ane voluntarily p r o vided g e neral information about the test and the individuals w ho had been required t o t a k e it

a t the Ariz o na subsidiary where Ochoa worked. That information included each test taker’s g ender, job c lass,

reason f or taking t h e t e s t, and score received (pass or fail). However, McL ane refused to disclose what the p artie s have referred to a s “pedig r ee information” for each test t aker (name, social security number, last known address, a ndEEOC V

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t e l ephone number). I nstead of identify ing the test takers b y

name a nd soc i a l s ecurity number, McL ane identified them only by an “ employ ee I D number” created solely for purposes of responding to the E EO C ’ s investig ation. McL ane also

r e fused to disclose, for those employ e es who had take n t h e test and were later terminated, w hen and w h y t h e ir employ ment was terminated.

The EEOC eventually ex panded the scope of its investig ation to include all McL ane facilities n ationwide within the g roc e r y d ivision (the division in which Ochoa worked), since all of those facilities used the same test f or the

s a m e purposes. The EEOC soug ht the same informat i o n described above f

o r each o f the test takers at McL ane’s facilities nationwide. McL ane ultimately p r o v ided most o f that information, but it ag ain r efused to provide either pedig ree information or, for tho se test takers who were ultimately

terminated, the reasons for termination.

The E EOC then issu e d an a dministrative subpoena demanding production of the withheld information. McL ane petitioned the EEOC to r evoke or modify t h e subpoena, but
t h e ag ency denied the petition. Upon McL ane’s cont i n u e d refusal to provide the d isp u t e d information, the EEOC filed this subpoena enforcement action.

The district court g ranted in part and denied i n p a rt the EEOC’s request for enforcement. The court r equired McL ane to d isclose the following information: the g ender o f each test taker, the date the test w as g iven, the score the test taker received, the position for which the test was taken, the
pas s ing score for the position in question, and any adverse employ ment action imposed within 90 day s of an e mploy ee’s taking the test. (McL ane had already provided some, but notEEOC V

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all, of that info rmation.) The court r efused to enforce the subpoena to the ex tent it required McL ane to divulg e two categ ories of information: (1) the pedig ree information for each test taker; and (2) f o r t h o se employ ees who were ter minated after taking the test, the reasons for termination. W ith respect to the p edig ree information, the c ourt concluded tha t the E EOC did not n eed such information to determine whether McL ane had used the test to d iscriminate on the basis of sex

. T hus

, i n t h e court’s view, the information was not relevant at this stag e of the EEOC’s investig ation. W ith respect to the reasons for ter m ination, the c ourt did not

ex p lain why it refused to require prod uction of that information. However, in a parallel subpoena enforcement action t he EEOC broug ht ag ainst McL ane under the Ag e Discrimination in E mploy ment Act ( ADEA), the court h ad earlier ruled that providing information about w hether an adverse employ

ment action w as directly tr i gge red b y taking
t h e test (as the EEOC had requested) would b e unduly burdensome. E

EOC v. McLane Co.
, 2012 W L 1132758, at *6 (D. Ariz . Apr. 4, 2012). 1

I I

Title VI I g rants the EEOC broad power, within specified limits, t o investig ate potential violations of the statute. The

a ge n c y ’s investig ative authority is trig g ered by the filing of

a charg e alleg ing that an e mploy er has enga ge d in

1 T h e EEOC h as d i sm issed th e ap p eal it f iled in th e A DEA actio n

. A n d alth o u g h Och o a’ s ch arg e alleg ed d iscrim in atio n o n th e b asis o f disab ility

u n d er th e A m erican s w ith D isab ilities A ct (i n ad d itio n to alleg in g d iscrim in atio n o n

th e b asis o f

sex ), th e EEOC is n o lo n g er attem ptin g to

en f o rce t h e su b p o en a b ased o n th e alleg atio n s o f disab i lity d i s crim in atio n

. W e th eref o re f o cu s o u r an aly sis o n

th e T itle VII ch arg e alo n e.EEOC V

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employ ment practices made unlawful by the statute. A charg e may be filed either b y an EEOC Commissioner or, a s in this c ase, by “a person claiming to be ag g rieved.” 42 U.S.C. § 2000e–5(b). The c harg e is n ot a formal pleading
g overned by the leg al standard s a p p l i cable to the filing of a

c o m plaint. E

EOC v. Shell Oil Co.
, 466 U.S. 54, 68 ( 1 9 8 4 ). I ts p urpose is simply to “place the EEOC on notice that

someone ( e i t her a party claiming to be ag g rieved o r a Commissio n er) believes that an employ er has violated the title.” Id. A charg e is valid if it contains “[ a ] clea r a nd concise statement of the facts, including perti n ent dates, constituting the a l l e g ed unlawful employ ment practices,” althoug h even a written statement “sufficient l y precise to identify the parties, and to d escribe g enerally the action o r practices complained of” will do. 29 C.F .R. § 1601.12(a)(3), (b).

Once the EEOC receives a charg e, the statute states that the ag ency “shall make an investig ation thereof.” 42 U.S.C. § 2000e–5(b). The EEOC’s investig a tive authority is limited,
at least initially

, to the unlawful employ men t p r a ctices specified in the c harg e. Shell O i l

, 4 6 6 U.S. at 64. ( I f new facts come to lig ht during an investig ation, the EEOC may

ex p and its scope bey o nd the practices specified in the orig inal ch arg e

. S

ee EEOC v. General Elec. Co.
, 532 F .2d 359, 364–66 (9th Cir. 1976) .) Unlike some federal ag encies, which h ave “plenary authority to demand to see r e c o rds relevant to matters within the ir jurisdiction,” the EEOC’s authority under Title VI I is m o r e constrained. Shell Oil

, 466 U .S. at 64. The ag ency h as the rig h t to obtain e v i d e nce only if it relates t o employ ment practices made unlawfulEEOC V

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under T itle VI I and “ i s r e l evant to the charg e under investig ation.” 42 U.S.C. § 2000e–8(a). 2

W h en a n e mpl o y e r refuses to comply with the EEOC’s requests for information, as occurred here, the EEOC may issue an administrative s ubpoena and bring an enforcement

a c t ion to compel compliance. 42 U.S.C. § 200 0 e

– 9 (incorporating the provisions of 29 U .S.C. § 161). The scope of judicial review in such acti ons is narrow. A court determines only “ ( 1) wheth e r Cong ress has g ranted the authority to investig ate; (2) whether p rocedural requirements have been f

ollowed; and (3) whether the evidence is relevant and material to the investig ation.” EEOC v. Children’s Hosp. Med. Ctr.
, 719 F .2d 1426, 1428 ( 9 t h C i r

. 1983) (en banc), overruled on other grounds as recognized in Prudential Ins. Co. v. Lai
, 42 F .3d 1299, 1 303 (9th C i r

. 1 9 9 4). I f those conditions are met, the court must enforce the subpoena unless the objecting party shows that the sub poena is overbroad or that compliance w ould be unduly burdensome. Id. W e review the district court’s resolution of thes e i s s u e s de novo. EEOC v. Federal Express Corp.
, 558 F .3d 842, 846 (9th Cir. 2009). 3

2 Sectio n 2 0 0 0 e– 8 (a) p ro v id es: “ In co n n e c t i o n w i t h an y in v estig atio n

o f a ch arg e f

iled u n d er sectio n 2 0 0 0 e– 5 o f th is title, th e Co m m issio n o r its d esig n ated rep resen tativ e sh all at all reaso n ab le tim es h av e access to , f or th e p u rp o ses of ex a m i n atio n , an d th e rig h t to co p y an y ev id en ce o f an y p erso n b ein g in v estig ated o r p ro ceed ed ag ain st th at re l a t e s t o u n l aw f u l

em p l o y m en t p ractices co v ered b y th is su b ch ap ter an d is relev an t to th e ch arg e u n d er in v estig atio n .”

3 W h y w e r e v i e w q u estio n s o f relev an ce an d u n d u e b u rd en d e n o v o is

u n clear. In a sim ilar b u t related co n tex t—issu an ce of a pro t ectiv e o rd er restrictin g th e sco p e o f an ad m i n istrativ e s u bp o en a—w e h av e sa i d th at

rev iew is f o r ab u se o f d iscretio n

. See McLa u gh lin v. S ervice Emp lo yees Un io n , AFL-CIO, Lo ca l 2 8 0
, 8 8 0 F.2 d 1 7 0
, 1 7 4 (9 th Cir. 1 9 8 9 ). Oth erEEOC V

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I I I

W ith that backg round in mind, we turn to the specifics o f the dispute b e fore us. McL ane does not c ontest th a t t he EEOC has followed the proper procedural requirements. Nor

c a n it seriously contest that the subpoena relates to a m a t t e r wit hin the EEOC’s investig ative authority

, since O choa’s charg e alleg e s discrimination in employ ment on the b asis of

sex

. See 4 2 U.S.C. § 2000e–2(a)(1). (Title VI I defines discrimination on the b asis o f p r egn ancy a s a form of sex discrimination. 42 U.S.C. § 2 0 0 0e(k).) W ith respect to the test-taker p edig re e information, McL ane contests whether
t h a t information is “ r elevant to the charg e under investig ation.” 42 U.S.C. § 2 000e–8(a). W ith respect to the

reasons for terminatio n , McL ane contends that producing such information would be unduly burdensome.

A

W e b eg in with the district court’s refusal to c ompel production of the pedig ree information, which the court h eld is not relevant at this stag e of the EEOC’s investig ation.

The relevancy limitation imposed by § 2000e–8(a) “ is not especially constraining .” Shell O i l

, 4 6 6 U.S. at 68. The question is not whether the evidence soug ht w o u l d tend to

circ u i t s a l so ap p ear to rev iew issu es related to en f o rcem en t of ad m i n istrativ e su

b p o en as fo r ab u se o f d iscretio n

. S ee, e.g

. , EEOC v. Kro n o s In c. , 6 2 0 F .3 d 2 8 7
, 2 9 5 (3 d Cir. 2 01 0 ); EEOC v. Un ited Air Lin es, In c. , 2 8 7 F.3 d 6 4 3
, 6 4 9
, 65 4 n .6 (7 t h Cir. 2 0 0 2 ). No n eth eless, th e d e n o v o stan d ard o f rev iew is n o w f irm ly en t ren ch ed in o u r case law

. S ee, e.g

. , Un ited S ta tes v. Go l

d en Va l ley Electric Ass’n
, 68 9 F.3 d 1 1 0 8
, 11 1 1 (9 th Cir. 2 0 1 2); NLRB v. No rth Ba y Plu mb in g

, In c. , 10 2 F.3 d 1 0 0 5
, 1 0 0 7 (9 th Cir. 1 9 9 6 ).EEOC V

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prove a charg e of unlawful discrimination. At the investig ative stag e, t h e EEOC is try ing to determine only whether “reasonable c a

use” e x ists “to believe that the charg e is true.” 42 U.S.C. § 2000e–5(b). So the relevance standard in this contex t sweeps more broadly than it would at trial. I t encompasses “virtually any material that mig ht cast l ig ht on the alleg ations ag ainst the employ er.” Shell Oil

, 4 66 U.S. at 68–69.

Under this standard, we think the p edig ree information is relevant to the EEOC’s investig ation. O choa’s charg e alleg e s that M c L an e’s use of the streng th test discriminates on the b a s i s o f s ex

. To decide w hether there is any truth to that alleg ation, the EEOC can of course speak to Ochoa a bout her

ex p erience with taking the test. B ut the EEOC also wants to

co n tact other McL ane employ e e s and applicants for employ ment who have taken the test to learn more about their

ex p eriences. Speaking w ith those individuals mig h t cast lig ht

on the alleg ations ag ainst McL ane—whether p o s itively o r neg atively

. To take b ut one ex ample, the EEOC mig ht learn throug h such conversations that other female employ e es have been subjected to adverse employ ment actions after failing the test when similarly situated male employ ees have not. Or it mig ht learn the opposite. Eith er w a y , the EEOC will be better a b l e to assess whether use of the test has resulted in a “patt er n or practice” of disparate treatment. To p ursue that path, h owever, the EEOC first needs to learn the test takers’ identities and contact information, which is enoug h to render the p edig ree inform a t i o n r e l e vant to the EEOC’s investig ation. The district court erred by refusing to e nforce the subpoena’s request for production of that information.

McL ane raises a series of arg uments resisting this conclusion, but all o f them lack merit. F irst, McL ane assertsEEOC V

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t h a t Ochoa’s c harg e alleg es only a disparate impact claim

, not a pattern-or-practice d isparate treatment claim. Th at assertion is wrong

. Ochoa’s charg e does n ot a lleg e discrimination based on a ny particular leg al theory

, and it did

n o t need to d o so. See EEOC v. Kronos Inc.
, 620 F .3d 2 8 7
, 3 0 0 (3d Cir. 2010). A charg e is valid if it is suff i c i e n t l y precise “to descr i b e g enerally the action or practices complained of.” 29 C.F .R. § 1601.12(b). Ochoa’s charg e did that by describing McL a ne’s practice o f precluding employ e es who h ave taken maternity leave from returning to work unless they pass a streng th test, which she c ould not do despite three attempts. Ochoa’s charg e is fra m e d in terms g eneral enoug h to sup p ort either a disparate impact o r a disparate treatment theory

. S ee Kronos
, 620 F

. 3d at 300. A s the Third Circuit put it in Kronos
, “it is u p to the EEOC, not [ Ochoa]

, to investig ate whether and under what leg al theories discrimination mig h t have occurred.” Id.

Second, McL a n e contends that, g iven all o f the other i n f o rmation it has produced, the EEOC cannot show that production of the pedig ree information is “ne c essary” to complete its investig a tion. B ut the g overning standard is not “necessity

” ; it is relevance. I f the EEOC establishes that the evidence it seeks is relevant to the charg e under investig ation,

w e h a ve no warrant to decide w hether the EEOC c oul d conduct the investig ation just a s well without it. The EEOC does no t h a v e to show a “particulariz ed necessity of access, bey ond a showing of mere relevance,” to obtain evidence. University of Pennsylvania v. EEOC
, 493 U.S. 1 82, 188 ( 1990). Cong ress has n ot left it to e mploy ers a c c u s ed o f discrimination to decide what e v idence may be necessary for the EEOC to complete its investig ation. Id. at 193.EEOC V

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Fo r similar reasons, the d istrict court erred when it hel d that pedig r ee information is i r r elevant “at this stag e” of the investig ation. The court reasoned that the e vidence McL ane has already p roduced “will enable the E

. E.O.C. to determine whether the [ streng th test] sy stematically discriminates o n the basis of g ender.” The c ourt sug g ested that if the EEOC’s analy sis o f that evidence reveals sy stemic discrimination, the pedig r e e information mig ht become relevant and obtaining that information m i g h t then be “necessary .” The E EOC
arg ues that t h e d i strict court improperly required it to substantiate the alleg ation of sy stemic discrimination before it could obtain access to relevant evidence. W e doubt that is what the district c ourt meant, as the Supreme Court has made plain that courts may n ot condition enforcement of E EOC administrative subpoenas on a threshold evidentiary showing that the alleg ations under investig ation have merit. Shell Oil

, 466 U .S. at 71–72 & n.26. Rather, the district c ourt a ppeared
to conclude that the E EOC d id not really n e e d pedig r ee i n f o r mation to make a preliminary determination a s to whether u se of the streng th test has re s ulted in sy stemic discrimination. As we have ex plained, however, that line o f reasoning is invalid: The EEOC’s need f or the evidence—or lack thereof—simply d o es n o t factor into the relevance determination. B ecause the pedig r e e information meets the broad standard fo r relevance, the EEOC is entitled to obtain that information now. ( McL a ne does not contend that production of the in f

o r m a tion poses any kind of undue burden.)

F inally

, McL ane contends that the p edig ree information is n o t r elevant because Ochoa’s charg e alleg e s only a “neutrally applied” stre n gth test, which by definition cannot g ive rise to d isparate tr e a tment, sy stemic or otherwise. McL ane’s arg ument misconstrues the charg e

. O choa alleg e sEEOC V

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that McL ane requires a l l employ ees returning from medical leave to take the streng th test before they can return to work, but she does not alleg e that the test is n eutrally applied

. (She al l e ge s just the opposite—that the test was discriminatorily applied as to her.) Even thoug h McL ane requires every one to take the test, the test could still be applied in a discriminatory

m a n n e r—if, for ex ample, the company were to r outinel y

ex c u se the failure of male employ ees to pass the test but g rant

no such ex emptions to similarly situated female e m p l oy ees. The very purpose of the EEOC’s investig ation is to determine whether the test is being neutrally applied; th e EEOC does
not have to take McL a

n e ’ s word f

o r i t on that score. See Merritt v. Old Dominion F reight Line, Inc.
, 601 F .3d 289, 296–99 (4th Cir. 2010).

One additional note is in orde r reg arding the EEOC’s request for social security numbers. The EEOC seeks that informatio n s o that it can accurately identify individual test takers in the data sets it has received f r o m M c L ane. A s

ex p lained above, other employ ees’ ex p erien c e s mig h t cast l i g ht o n the alleg ations ag ainst McL ane, whether b y substantiating them or showing them to be un founded. I nformation that helps the EEOC determine w hom to contact to learn more about McL ane’s use of the tes t is therefore

r e l e v ant to the investig a tion. McL a ne contends that the employ e e I D numbers should suffice for these purposes, but that is n ot McL ane’s call t o m ake. F urthermore, McL ane does not assert any undue b urden associated with producing this information, nor could i t , fo r the orig inal data sets contain employ ee social security numbers. I f any thing

, McL ane has imposed an e x tra burden o n itself by removing that information from the d ata sets before producing them to the EEOC.EEOC V

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McL ane sug g ests in a footnote that it is simply attempting
t o protect its employ ees’ privacy interests by withholdi n g their social security numbers, but the Supreme Court has already rejected an analog ous arg ument. See University of P e n nsylvania

, 493 U.S. at 192–93. Cong ress has struc k t h e balance between g ranting t h e EEOC access to relevant evidence a

nd protecting confidentiality interests by imposing strict limitations on the public disclosure of inf o rmation produced d

uring the course o f an EEOC investig ati o n

. Id. ;

see 4 2 U.S.C. § 2000e–8(e). McL ane’s dissatisfa c t i o n with that balance do es n o t entitle it to withhold information relevant to a charg e of discrimination.

B

That leaves the second c a teg ory o f information in dispute:
t h e reasons for termination. The district court provided n o

ex p lanation for refusing to require prod uction o f this information. I t is clearly relevant t o t h e EEOC’s investig ation; McL ane does n o t arg ue otherwise. McL ane nonetheless attempts to defend the distr i c t c o urt’s ruling on the g round that producing this information would pose an undue b u r d e n

. McL ane prevailed on this arg ument in the parallel subpoena enforcement action in the ADEA c ase, but the EEOC’s request there was more onerous th a n the one at issue here. I n the ADEA action, the EEOC soug ht information for employ ees whose dismissal was trig g ered b y failure to p ass the test, but McL ane represented that its human

resources d atabas e d id not capture such “trig g ering ” information and that it was not otherwise readily available. McLane Co.
, 2012 W L 113 2 7 5 8
, at *6. Here, the EEOC is
not seeking such “trig g ering ” information; it requests instead M c L ane’s reasons for terminating employ ees who h a d previously taken the test, reg ar d l ess of a ny linkag e b etweenEEOC V

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the two. B ecause t h e i s sue raised in this action is not the

same as the issue raised in the ADEA a ction, the E EOC is not precluded from litig ating the u n d u e burden issue here. See Hydranautics v. FilmTec Corp.

, 204 F .3d 880, 885 (9th Cir. 2000).

W e do not think it w ould be p rudent for us to address the undue burden issue in the f irst instance. W e therefore vacate the district cour t ’s o rder deny ing e nforcement of the subpoena’s request for the reasons for termination, and remand so that the district court can rule o n whether requiring McL ane to produce that information w ould in fact be unduly burdensome.

REVERSED in par t , VACATED in part, a nd REMANDED.

M. SMI TH, Circuit J udg e , concurring :

I c oncu r i n the majority opinion. I write separately to discuss McL ane’s s u gge stion that it w as justified in withhold i n g its employ ees’ Social Security Numbers to protect their p rivacy in t e r ests. T he majority opinion rejects that arg ument, following U niversity of Pennsylvania v

. EEOC
, 493 U.S. 182 (1990). I t bears n o ting

, h o w e v e r, that University of

Pennsylvania predates the r ash of “data breach” incidents that plag ue a world interconnected by computers.

Of particular relevance is the United States g overnment’s dismal performance in protecting even i t s own e mploy ees’ sensitive data. See, e

. g. , Office of Pe r s o nnel Manag ement Cy bersecurity Resource Center, Cy bersecurity I ncidents,EEOC V

. M C L A N E C O

. 16

“W h a t Happened,” https://www.opm.g ov/cy bersecurity

/

c y b e r s ec u r i t y -i n ci d e n t s / # W h a t H a p p e n e d ( d e t a i l i n g t h e discovery in J une , 2 0 1 5 of the theft from the Office o f Pe rs o nnel Manag ement of 21.5 million Social Security N umbers, an undisclosed number of interview records, 5

. 6 million fing erprints, and a n undisclosed number of u s e r names and passwords).

Thus, it may be that the EEOC’s insis t e n ce here on obtaining Social Security Numbers and other information that could b e u s ed to steal an employ ee’s identity will endang er the very employ ees it seeks to protect. While we, as a court,

are not in a p osition in this case to weig h the concerns present in any particular data g athering and storag e p rotocol, the EEOC would b e well advised to consider these issues in the collection of data in this case.