Don Livingston Quoted by Reuters on 9th Circuit EEOC Case

Don Livingston, a partner in the labor and employment practice at Akin Gump, was quoted by Reuters in an article about EEOC v. McLane, a case being heard this week by the 9th Circuit Court of Appeals.

The Equal Employment Opportunity Commission (EEOC) is appealing a 2012 ruling by a federal judge in Arizona who said it cannot subpoena information from an employer that is “untethered to any aggrieved person.” The case in question involves a warehouse worker at food distributor McLane Company, Inc. who was fired for failing a series of strength tests after returning to work from maternity leave. The woman filed a charge of gender discrimination with the EEOC, which, upon filing suit against the company, sought information on other workers who took the test in an effort to root out additional possible rights violations.

The article notes that appeals courts over the past decade have reversed several lower court rulings, saying the commission has broad power to expand its investigations. Livingston, a former general counsel at the EEOC, however, said the commission in McLane is seeking personal information that the company’s employees likely assumed would be kept private. There were few cases, he noted, addressing the link between an individual employee’s complaint and the personal information of coworkers. He added, “When EEOC has the ability to contact individual employees, there are no restraints on what the commission can say or do or what promises it might be making.”