Donald Livingston Quoted by SHRM on Upcoming SCOTUS Decision on EEOC Subpoenas

Society for Human Resource Management, for its article “Supreme Court Takes Up EEOC Subpoena Case,” quoted Akin Gump labor and employment partner Donald Livingston regarding the U.S. Supreme Court’s upcoming decision on whether to allow federal appeals courts to review Equal Employment Opportunity Commission (EEOC) subpoenas as if for the first time, as opposed to deferring to a district court’s previous determination.

The article notes that businesses may not want the process to change. Livingston added, “Employers do reasonably well in convincing federal district court judges to narrow EEOC investigative subpoenas. The more deference given to the district court judges by the courts of appeal, the more the EEOC will be required to tailor requests to the matter under investigation.”

Regarding grounds for challenging an EEOC subpoena, Livingston noted that there are five challenges employers will typically present: the agency’s geographic and temporal scope, information about employment practices and categories of discrimination not alleged in the charge and undue burden. He added, “District courts, which see the EEOC regularly in a variety of cases, are less likely to view the EEOC as a neutral fact-finder than are the courts of appeal. The district courts review the EEOC arguments more skeptically, and are therefore less likely to defer to the EEOC's judgment about relevance.”