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EEOC Subpoena Power: Where, and When, Does It End?

If the Equal Employment Opportunity Commission (EEOC) has ever sent you a charge of discrimination or subpoena, you know you have work to do. But what happens when you settle the underlying claims with the charging party or when the case is dismissed by a federal court after the charging party receives a “right to sue” letter? Does the EEOC have the ability to continue its investigation to uncover other discriminatory acts? 

In a case of first impression, EEOC v. Union Pacific Railroad Company, Case No. 15-3452, the Seventh Circuit Court of Appeals will determine whether the EEOC’s power to investigate workplace discrimination ends when the case that initiated the EEOC’s investigation has been resolved. In Union Pacific, the employees’ discrimination claims were dismissed by a federal district court because there was not enough evidence that discrimination occurred. Despite the fact that (1) the EEOC issued the employees a “right to sue” letter (effectively closing the EEOC’s investigation into the employee’s claim) and (2) the case was dismissed by a federal court, the EEOC issued a subpoena to the employer. According to the EEOC, it was simply continuing to investigate potential discrimination uncovered during its investigation of the employees’ claims.

Two of the three judges on the review panel appeared to express skepticism that the EEOC would be prevented from continuing its investigation of discrimination by the employer based on the dismissal of the underlying individual claims. Because there is no precedent on this issue in the Seventh Circuit, it remains to be seen whether the court will limit the EEOC’s investigative power or will permit the EEOC to investigate an employer’s activities in the absence of a live charge. 

Copyright © 2020 Godfrey & Kahn S.C.National Law Review, Volume VII, Number 61


About this Author

Rufino Gaytán, Labor & Employment Attorney, Godfrey Kahn Law Firm "

Rufino Gaytán is an associate member of the firm's Labor & Employment Practice Group in Milwaukee. Rufino assists private and public employers in addressing general human resource issues and counsels employers in every aspect of labor and employment law. In particular, Rufino provides assistance with discrimination claims, wage and hour issues and drafting and enforcing restrictive covenant agreements. Rufino also represents clients before the Equal Employment Opportunity Commission and the Wisconsin Equal Rights Division.