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EEOC subpoena power: Where, and when, does it end?

March 02, 2017

subpoenaIf 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. 

Stay tuned…

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