Can the EEOC keep investigating a claim after it has issued a right to sue letter? What about after the charging party has already filed a lawsuit and lost at the summary judgment stage? The U.S. Court of Appeals for the Seventh Circuit says it can. Adding to the circuit split already created by the Fifth and Ninth Circuits, the Seventh Circuit’s decision in EEOC v. Union Pacific Railroad Company focused on the broad authority that Title VII grants the EEOC.

The Facts

In October 2011, two former employees, Frank Burks and Cornelius Jones, Jr., filed discrimination charges against Union Pacific, asserting that they were denied the opportunity to take a test for a promotion because of their race. The EEOC requested a copy of the test and other company-wide information, but Union Pacific refused, at which point the EEOC issued a subpoena and ultimately filed its first enforcement action against Union Pacific.

Union Pacific and the EEOC reached a settlement in which the company agreed to provide some information. (The EEOC contends that the company never provided the promised information.) Nevertheless, the EEOC issued a right-to-sue letter to Burks and Jones, who then filed a joint complaint in the U.S. District Court for the Northern District of Illinois.

While the employees’ lawsuit progressed, the EEOC sent Union Pacific a second request for information, and after Union Pacific refused again, the EEOC served a second subpoena. Two months later, the district court granted Union Pacific’s motion for summary judgment and dismissed Burks’ and Jones’ lawsuit with prejudice. However, the EEOC still brought an enforcement action against Union Pacific to comply with the subpoena.

Union Pacific argued that the EEOC lost its investigatory authority either after it issued the right-to-sue letter or when the district court granted Union Pacific summary judgment. The district court disagreed and Union Pacific appealed.

The Seventh Circuit’s Opinion

The Seventh Circuit reviewed pertinent decisions of the Fifth, Seventh and Ninth Circuits, as well as the U.S. Supreme Court, regarding the EEOC’s enforcement authority. Focusing on the text of Title VII and the public interest at stake in EEOC investigations, the court ruled that neither the issuance of a right-to-sue letter nor the entry of judgment in a charging party’s civil action barred the EEOC from further investigating a discrimination charge.

The Seventh Circuit explained that a discrimination charge must meet the minimal requirements established by Title VII (which are not onerous): It must be in writing, under oath or affirmation, and contain the information and be in the form that the EEOC requires. Because Burks’ and Jones’ charges met these requirements, the EEOC was expressly authorized to investigate Union Pacific. Moreover, because Title VII did not expressly limit the EEOC’s investigatory authority to any particular time period, the EEOC had control over its own investigation and enforcement efforts regardless of the actions of the charging parties.

Citing the EEOC’s regulation and amendments to Title VII that broadened the EEOC’s investigative authority, the Seventh Circuit held that continuation of an investigation may occur after the issuance of a right-to-sue letter and in spite of the disposition of a civil action brought by the charging parties.

“To hold otherwise would not only undercut the EEOC’s role as the master of its case under Title VII, it would render the EEOC’s authority as ‘merely derivative’ of that of the charging [party].”

Lessons for Your Next EEOC Charge

With the EEOC’s investigatory power fortified by at least two circuit courts, what must employers know before confronting a charge of discrimination and subpoenaed information?

  • The EEOC’s broad investigatory authority extends beyond the specific complaints of a charging party. A victory in federal court may not free you from an EEOC investigation or subpoena.
  • The standard that the EEOC must meet to get a subpoena enforced is low. Federal courts are likely to enforce the subpoena if it is within the EEOC’s authority, not too indefinite, and seeking reasonably relevant information.
  • Finally, if you plan to contest an EEOC subpoena, focus on how the subpoena poses an unreasonable or undue burden. Make arguments emphasizing how long ago the charge was filed, the course of the EEOC’s investigation, the timing of the subpoena, the difficulty of obtaining the information sought, and/or the dismissal of a civil action brought by the charging party on the merits.