Daily Labor Report®

High Court Won’t Weigh EEOC’s Power to Investigate Claims (1)

April 6, 2020, 1:36 PMUpdated: April 6, 2020, 3:20 PM

The U.S. Supreme Court won’t consider whether the EEOC can continue to investigate companies and request broad employment information after a worker has already filed a discrimination lawsuit.

The justices declined Monday to review a U.S. Court of Appeals for the Ninth Circuit ruling that said the Equal Employment Opportunity Commission lawfully pursued its investigation of VF Jeanswear after it issued a right-to-sue notice to former employee Lori Bell. Although that notice cleared Bell to bring an age and gender discrimination lawsuit against the company, the appeals court said it didn’t end the EEOC’s power to ask for company-wide information about supervisors, managers, and executive employees.

Justice Clarence Thomas dissented from the denial of review, writing that he would have taken up the case to “determine whether the agency is operating within the confines of the authority granted by Congress.” He argued VF Jeanswear was effectively subjected to a second investigation by the EEOC after the right-to-sue notice was issued.

The company wrote in its petition to the high court that the Ninth Circuit’s decision “undermines the multistep enforcement structure that Congress erected.”

Workers must first file a charge with the EEOC, and then receive a right-to-sue letter, before bringing a discrimination lawsuit under Title VII of the 1964 Civil Rights Act and other laws. The agency, which enforces Title VII, can bring its own suits and investigations.

The EEOC, represented by the Justice Department, told the justices that the agency has the right to access “virtually any material that might cast light on the allegations against the employer.” It said the appeals court correctly determined that the EEOC’s authority to investigate charges doesn’t end when the right-to-sue letter is issued.

Both parties agreed, however, that the Ninth Circuit’s decision—which was unpublished and thus doesn’t set case law precedent— conflicts with a Fifth Circuit ruling.

Thomas Questions Split

Thomas, a former EEOC chair, pointed to the split between the Ninth Circuit’s decision and the previous Fifth Circuit ruling, arguing that while the divide is narrow, “it directly implicates the EEOC’s core investigative powers.”

Thomas said that if the Fifth Circuit was correct in ruling that a right-to-sue notice terminates the agency’s ability to investigate, then further investigation would subject employers to “a time-consuming drain on their resources.”

Thomas disagreed with the Ninth Circuit’s approach, calling it “highly problematic,” and said the appeals court bypassed the statutory text entirely. The court shouldn’t have given the agency authority to issue wide-ranging subpoenas that consume employers’ time and resources, he argued, and the Ninth Circuit’s deference to EEOC interpretation was inappropriate based on the high court’s precedent.

VF Jeanswear is represented by Womble Bond Dickinson. The Justice Department represents the EEOC.

The case is VF Jeanswear v. EEOC, U.S., No. 19-446, cert. denied 4/6/20.

(Updated with Justice Clarence Thomas's dissent. )

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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