Equal Employment Opportunity Commission v. Bashas' Inc.

MEMORANDUM

The EEOC served Bashas’ Inc. with the subpoena at issue on this appeal. Bashas’ refused to comply. Except for a few “requests which the [district] court deem[ed] irrelevant,” the district court directed that Bashas’ comply with the EEOC’s subpoena. After the parties failed to agree on the terms of a confidentiality order, the district court entered one of its own. Only the EEOC appeals, arguing that the confidentiality order entered by the district court is wholly unwarranted or, alternatively, overbroad.

In its brief on appeal, the EEOC took the position that it could make disclosure of subpoenaed information prior to issuing a Notice of Right to Sue and closing its investigation. Specifically, it stated that “the EEOC may make disclosures to aggrieved persons during the investigation to the extent deemed necessary to effectively enforce the law.” Moreover, this position was consistent with its argument in the district court that the statutory and regulatory framework gave it the right to make such disclosure.

Nevertheless, in its oral argument, the EEOC did an about-face. Thus, the attorney arguing the case stated:

The EEOC’s position at oral argument may obviate…