The Seventh Circuit recently concluded that the EEOC’s investigative powers do not end when a lawsuit related to the originating charge ends.  EEOC v. Union Pacific, No. 15-cv-3452 (Aug. 15, 2017).

Background.  Two former railroad employees alleged race discrimination and retaliation in EEOC charges, asserting that they were not permitted to take an advancement test and were later discharged.  In 2012, the EEOC issued a right to sue letter to them.  The employees filed suit in the Northern District of Illinois, and the suit was dismissed in July 2014.  Despite having issued the right to sue letter and despite the dismissal of the private lawsuit, the EEOC continued its investigation into alleged race discrimination against other employees in the same work unit, and petitioned in September 2014 to enforce a subpoena when the Company had refused to produce documents (because it contended that the EEOC’s investigative authority terminated upon the resolution of the underlying charges and lawsuit).  The district court granted the EEOC’s petition to enforce, and an appeal followed.

Ruling.  The Seventh Circuit ruled that while the investigative authority is tied to charges filed with the Commission, that authority does not end when the proceedings related to the charges terminate.  The court based its holding on “the EEOC’s broad role in promoting the public interest by preventing employment discrimination under Title VII, including its independent authority to investigate charges of discrimination.”  Even though the EEOC had issued right to sue letters years earlier, and a district court granted the Company summary judgment in July 2014, the court found that the EEOC could continue to investigate potential discrimination at the Company through subpoenas which were issued in 2014 and became the subject of the underlying enforcement action.  Acknowledging the circuit split as to whether EEOC authority terminates after a right to sue letter is issued, the Seventh Circuit sided with the Ninth Circuit and disagreed with the Fifth Circuit on this issue.

Implications.  While this decision and the expanding circuit split may entice the U.S. Supreme Court to weigh in on the scope of the EEOC’s investigative authority, employers in Illinois, Indiana and Wisconsin should be mindful that (at least for now) the EEOC’s investigation of alleged discrimination may not end when proceedings related to an original charge terminate.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.