Dive Brief:

• The U.S. Supreme Court declined April 6 to decide whether the U.S. Equal Employment Opportunity Commission (EEOC) can continue to investigate an employer after issuing an employee's right-to-sue letter (VF Jeanswear LP v. EEOC, No. 19–446 (U.S. Apr. 6, 2020)).
• The petition came after the 9th U.S. Circuit Court of Appeals held that EEOC subpoenas are enforceable so long as they seek information relevant to any of the allegations in a charge, not just those directly affecting a charging party. EEOC subpoenaed a "wide range of employment information" from the respondent in the 9th Circuit case, VF Jeanswear, relating to the manufacturer's supervisors, managers and executive employees following a former employee's decision to file a discrimination charge. A district court held that the subpoenaed information was not relevant to the employee's charge, but the 9th Circuit said the district court erred in its decision.
• Associate Justice Clarence Thomas, dissenting from the court's decision to deny certiorari, said VF Jeanswear said the Court should have weighed in on whether the EEOC may continue to investigate an employer's purported wrongdoing after issuing a right-to-sue notice to a private party who, in turn, has initiated his or her own litigation. If the court were to find that a right-to-sue notice terminates the EEOC's ability to investigate, then EEOC may be "impermissibly subjecting employers to time-consuming investigations," Thomas wrote; "I would grant certiorari to determine whether the agency is operating within the confines of the authority granted by Congress."

Dive Insight:

Employees seeking to hold an employer accountable for alleged discrimination generally must first file an EEOC complaint. The agency then has the option to pursue the charge on the worker's behalf. If it opts out of doing so, it issues the complainant a right-to-sue letter.

VF Jeanswear deals with what may be an important question about the core investigative powers of the federal agency tasked with enforcing workplace anti-discrimination laws in the U.S. The 9th Circuit joined the 7th Circuit in deciding that EEOC has the authority, under Title VII of the Civil Rights Act, to investigate wrongdoing after issuing a right-to-sue letter. But the 5th Circuit has held oppositely, creating a "shallow" split in authority, Thomas said.

"Leaving the Seventh and Ninth Circuit's highly questionable interpretation undisturbed has wide-reaching ramifications for employers subject to litigation in those Circuits," he added.

The Supreme Court held in 2017 that a district court's decision to enforce or quash an EEOC subpoena should be reviewed for "abuse of discretion" (McLane Co. Inc. v. EEOC, No. 15–1248 (U.S. Apr. 3, 2017)). Furthermore, the majority in that case held that a district court's role in EEOC subpoena enforcement is "straightforward," adding: "If the charge is proper and the material requested is relevant, the district court should enforce the subpoena unless the employer establishes that the subpoena is 'too indefinite' has been issued for an 'illegitimate purpose,' or is unduly burdensome."

The High Court's ruling has additional relevance thanks to EEOC operational changes due to the ongoing COVID-19 pandemic. EEOC has stopped issuing right-to-sue letters, effectively giving workers more time to file such lawsuits, Bloomberg Law reported. Typically, workers must file a lawsuit within 90 days of receiving a right-to-sue letter, according to EEOC.