EEOC Can Enforce Subpoena Despite Charging Parties’ Loss in Court

On May 1, a federal court in Wisconsin ruled that the Equal Employment Opportunity Commission (EEOC) retains the authority to enforce a subpoena it issued to an employer during an investigation , even when the charging parties already lost their lawsuits against the employer. EEOC v. Union Pac. R.R. Co. (E.D. Wis. 2015).

Frank Burks and Cornelius Jones filed charges of discrimination against Union Pacific Railroad in 2011 alleging race discrimination and retaliation because they were not permitted to take a test for an Assistant Signal Person position. The EEOC requested information about Union Pacific’s data and software systems that stored information about the assessment program and applicants for the Assistant Signal Person in 2011.

Union Pacific refused to provide the information, and the EEOC issued a subpoena to obtain it. The agency later filed suit for enforcement of that subpoena. At the time, the charging parties had already received their right-to-sue letters, and commenced suit in federal court. Their cases were dismissed by that court in summary judgment.

The court noted that the Fifth and Ninth Circuits had addressed the issue previously. The Fifth Circuit concluded that the EEOC no longer had the power to enforce a subpoena once litigation commenced, while the Ninth Circuit came to the opposite conclusion.

The court found the Ninth Circuit’s approach more persuasive. “First, no federal statute or regulation supports Union Pacific’s argument that the EEOC’s authority to investigate a charge ends at a certain point … Second, the EEOC does not simply represent the interests of private parties; it also represents the public interest independent of the complainants’ interests … Thus, the EEOC’s powers are independent of any resolution between employer and employee.”

While the decision is not binding outside of Wisconsin, employers should note that not all EEOC enforcement activities necessarily cease when a lawsuit commences or even terminates.