On August 25, 2025, the U.S. Court of Appeals for the Second Circuit affirmed that the EEOC may continue investigating and enforcing subpoenas even after issuing a right-to-sue letter and after the charging party files a private lawsuit.
In In re AAM Holding Corp., No. 24-1672-CV, 2025 WL 2433651 (2d Cir. Aug. 25, 2025), a former employee filed a class-wide EEOC charge of sexual harassment against two nightclubs operated by Respondents. During its investigation, the EEOC subpoenaed specific information (names, demographics, positions, employment dates, contact details), for each employee who worked at the nightclubs. The employer objected to the subpoena arguing such request was irrelevant and unduly burdensome to produce. While the subpoena dispute was pending, the EEOC issued the charging party a right-to-sue letter, and she filed a private lawsuit. Thereafter, the employer argued that the EEOC’s investigative and subpoena authority ended once the right-to-sue issued and private litigation commenced.
However, the Second Circuit rejected that argument and held EEOC retains its statutory authority to investigate charges and enforce subpoenas even after issuing a right-to-sue letter and after the charging party has filed suit. As such, the Court affirmed the enforcement of the subpoenas, as the Court did not find that the request at issue was irrelevant or unduly burdensome. In support of its reasoning, the Court emphasized the following:
- The EEOC acts on behalf of the public interest, and a “central component of the EEOC’s role is to pursue the public’s interest in enforcing employment discrimination laws even where that interest is distinct from, and may exceed, the private interest of the aggrieved charging party.” Id. at *4; and
- The structure or text of Title VII does not draw a bright line ending the EEOC’s investigative power once the charging party receives a right-to-sue and files suit. Title VII grants the EEOC broad authority to access evidence relevant to charges of unlawful employment practices “at all reasonable times,” and the Supreme Court has held this subsection “enable[s] the [EEOC] to make informed decisions at each stage of the enforcement process.” Id. at *3 (citing Univ. of Pa. v. EEOC, 493 U.S. 182, 191 (1990)). Further, Title VII directs the EEOC to make a reasonable cause determination “as promptly as possible” and, where “practicable” within 120 days, from the filing of the charge. The court interprets this language to suggest that although there is “some” time limit on the agency’s authority to continue investigating a charge after it is filed, it also confirms that there is no hard stop, as the EEOC is compelled to complete its investigation within 120 days only “so far as practicable.”
Notably, the Second Circuit’s ruling aligned with the Seventh and Ninth Circuits who have dealt with the same issue. See EEOC v. Federal Express Corp., 558 F.3d 842, 854 (9th Cir. 2009); EEOC v. Union Pacific Railroad Co., 867 F.3d 843, 850–51 (7th Cir. 2017). However, the Second Circuit’s Opinion expressly rejected the Fifth Circuit’s contrary view in in EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997), which held that the EEOC’s investigate authority ends when it issues a right-to-sue letter and the aggrieved party files suit.
Takeaway:
Depending on the circuit, employers should anticipate that EEOC investigations may proceed in parallel with private lawsuits and be prepared to respond to subpoenas even once litigation commences. As such, employers must be mindful to align positions in EEOC proceedings and a private lawsuit.
Please contact an NFC team member if you have any questions or seek further assistance.