In the wake of Hamas’s October 2023 terrorist attack on Israel, the University of Pennsylvania’s then-President Elizabeth Magill and others affiliated with the school stated publicly numerous times that Jewish faculty, employees and others at Penn had been subject to vile acts of antisemitism and harassment on campus…. Prompted by these statements, … [t]he EEOC … issued an administrative subpoena, with which Penn refused to comply, seeking contact information for Penn employees who may have been victims of, or witnesses to, such harassment…. The Court granted the EEOC’s application [for] {judicial enforcement of the subpoena}, requiring Penn to comply with most of the subpoena by May 1.
Penn, and later the intervenors, moved to stay the Court’s order pending appeal…. Penn does not have a strong chance of prevailing on appeal but makes, narrowly, a showing of irreparable harm. Staying the Court’s order will not substantially injure the EEOC and a stay will allow the Third Circuit Court of Appeals to address in an orderly manner a matter of great public interest….
A request for a stay pending appeal prompts four questions: (1) whether the applicant has made a strong showing it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether a stay will substantially injure the other party in the litigation; and (4) whether the public interest favors a stay….
Penn does not have a strong chance of success on the merits, and its motion further exposes its vulnerabilities on appeal. The charge of discrimination is valid, the EEOC’s subpoena seeks information relevant to the charge and the subpoena does not unduly burden Penn. The subpoena also does not violate substantive due process or the First Amendment. The Court explained its reasoning in its memorandum opinion [see this post], and Penn either ignores that reasoning, mischaracterizes it, or objects to it on superficial and conclusory grounds….
Penn … contends the EEOC’s subpoena is “so novel” it cannot be enforced. Penn stresses “the EEOC has cited no authority in which a court enforced a subpoena conscripting an employer to identify employees of a specific religion.” But the EEOC requested this information to further a charge of discrimination based on religion because in 2023 President Magill made numerous public statements over a one-month period describing the pernicious acts of antisemitism Jewish individuals, including faculty and other employees, experienced on Penn’s campus. While the EEOC’s investigation of a major university for alleged systemic religious discrimination may be comparatively unique, the purpose of its subpoena is not. The subpoena seeks contact information for employees affiliated with the Penn Jewish community because, in the EEOC’s view and to tailor its requests as narrowly as possible, those employees are more likely to possess information relevant to whether Penn subjected Jewish employees to a hostile work environment based on religion.
Most importantly, Penn has no support for its proposition that a court may quash an administrative subpoena because it contains a “novel” request. Penn wants the Court to sanction a newfangled principle—that an EEOC subpoena is invalid if it does not “resembl[e]” other judicially enforced EEOC subpoenas. At bottom, Penn appears to believe that a different set of legal standards should govern the enforceability of EEOC subpoenas in discrimination cases involving religion generally, and antisemitism specifically. But Penn neither articulates what those standards are, nor cites any precedent pursuant to which courts can fabricate them.
Penn wants to dictate the terms of the EEOC’s investigation, continuing to argue it can contact its employees on the EEOC’s behalf. But that gives an employer subject to a federal investigation an unacceptable role in, or authority over, how that investigation is conducted….
[Penn] contends the charge of discrimination fails to state a method of discrimination because it is “blank” and “merely asserts a legal conclusion.” But again, the charge fairly alleges Penn failed to provide Jewish faculty, staff and other employees a work environment free from religious harassment in the form of antisemitic slurs, messages and threats of violence, pointing Penn to specific acts of antisemitic harassment employees may have experienced on campus. That suffices to allege a method of discrimination ….
Penn mischaracterizes the Court’s opinion as concluding that a commissioner can state a valid method of discrimination by merely alleging an employer has violated Title VII. As Penn knows, that is not what the Court held, and Penn fails to advance a single critique of its actual reasoning. Requiring a commissioner to allege more than what Commissioner Lucas alleged here would “oblige the Commissioner to substantiate [her] allegations before the EEOC initiates an investigation, the purpose of which is to determine whether there is reason to believe those allegations are true.”
At oral argument, Penn said the charge could have alleged Penn required employees “on their way to work to run a[n] [antisemitic] gauntlet.” The charge pretty much says just that. Based on President Magill’s statements describing specific acts of antisemitic harassment Jewish faculty and employees experienced on campus, the charge alleges Penn permitted Jewish faculty, staff and other employees to endure religious harassment in the form of antisemitic slurs, messages and threats of violence.
Penn also argues the subpoena violates its employees’ right to informational privacy. Specifically, it contends the Court did not “squarely” address whether mere affiliation with a Jewish-related organization on campus falls within the ambit of materials protected by substantive due process. But as the Court explained, Penn offered nothing to support this argument.
Information is private if it is generally unavailable and a person treats it as confidential. Penn presented no facts that could show its employees’ affiliation with Jewish-related organizations is generally unavailable and that the employees keep this information confidential. Nor did Penn contend that affiliation with a Jewish-related organization on campus is inherently private information, such as a person’s medical records. Adjudication of substantive due process rights relies on facts and legal arguments, not conclusory and generalized assertions of privacy.
More importantly, the Court’s substantive-due-process holding did not turn on whether the affected employees have a privacy interest in the information sought by the subpoena. The Court assumed the EEOC’s subpoena sought private information and then balanced the EEOC’s interest in collecting it against the employees’ interest in keeping it from the EEOC….
As the Court explained, the EEOC has a substantial interest in investigating a valid charge of discrimination. It has a reasonable need for the information at issue because it seeks to contact Penn employees likely to possess evidence relevant to whether Penn subjected Jewish employees to a hostile work environment based on religion. Nothing suggests EEOC personnel will use the information to harm the affected employees. And Title VII protects against unauthorized disclosure of the information….
Another reason Penn is unlikely to win on its informational privacy claim is that such claims rarely, if ever, succeed. Each time it has spoken on the subject of informational privacy, the Supreme Court has permitted disclosure upon balancing the interests at stake. See Whalen v. Roe (1977) (upholding a state system that records personal information of patients who obtain prescription drugs); Nixon v. Adm’r of Gen. Servs. (1977) (requiring President Nixon to disclose information); NASA v. Nelson (2011) (requiring federal contract employees to disclose information to the government). And the Third Circuit Court of Appeals has taken a similar approach.
Finally, Penn argues the subpoena infringes the affected employees’ right to associate with Jewish-related organizations on campus. The Court viewed the subpoena through the lens of exacting scrutiny, as Penn wanted it to do. Under that standard, there must be a substantial relation between the subpoena and an important governmental interest, and the governmental interest must reflect the seriousness of the actual burden imposed on the affected employees. The subpoena must also be narrowly tailored.
As the Court explained, the EEOC has an important interest in investigating a valid charge of discrimination. Next, there is no dramatic mismatch between that interest and the subpoena the EEOC issued. The subpoena seeks contact information for employees in Jewish-related organizations because they are reasonably likely to have information relevant to the charge. And the EEOC’s interest in enforcement of the subpoena reflects the actual burden imposed on the affected employees. The subpoena does not require Penn to disclose an employee’s specific affiliation with a particular organization. Nor does it require Penn to publicize any information. And the record contains no evidence showing enforcement of the subpoena would actually chill the affected employees’ ability to associate with Jewish-related organizations on campus.
Finally, the subpoena is narrowly tailored. Narrow tailoring requires the EEOC to demonstrate its need for the information in light of less intrusive alternatives. But an alternative must be adequate. And an alternative may be inadequate if it is ineffective. The claimant “bears the burden to provide, in the record, evidence of … feasible alternatives” and the “government can then rebut by demonstrating that [the] alternative measures … would fail to achieve its interests.”
Penn did not point to any alternative, arguing only “the EEOC’s sweeping inquiry into all employee associations with Jewish-related organizations is not ‘narrowly tailored to the’ agency’s asserted interest in hearing about employee experiences with antisemitism.” The intervenors pointed to two alternatives, arguing Penn could inform its employees of the EEOC’s investigation and the EEOC could invite Penn employees to contact it through a hotline.
The Court addressed both of the intervenors’ alternatives in its opinion, finding them inadequate. The first proposal forces the EEOC to speak through Penn, which discourages employees to report discrimination. And both proposals prohibit the EEOC from contacting potential victims or witnesses of harassment directly to inform them of their rights and learn if they have evidence of discrimination.
Since the Court’s ruling, Penn has come up with its own alternative. It now argues a third-party vendor may inform its employees of the EEOC’s investigation. But this suffers from the same flaws as the intervenors’ alternatives. It strips the EEOC of its ability to contact possible victims or witnesses of antisemitic harassment, inform them of their rights, learn if they have evidence of discrimination, and attempt to persuade them to come forward if they do.
Penn also suggests the EEOC can contact every one of its over twenty thousand employees, but as Penn already knows, this too is inadequate. The EEOC has limited resources, so forcing it to contact twenty thousand individuals would significantly undermine its ability to conduct an effective investigation, not to mention that if it tried to do so, Penn would complain that the investigation was overly broad.
Moreover, narrow tailoring in this context requires only a “reasonable fit” between the EEOC’s goal and the means chosen to accomplish that goal. Bd. of Trs. v. Fox (1989). If the EEOC’s subpoena is “in proportion to the interest served,” the Court must “leave it to [EEOC] decisionmakers to judge what [requests] [] may be best employed.”
There is a clear fit between the EEOC’s subpoena and its interest. The subpoena seeks contact information for Penn employees aligned with the Penn Jewish community because they are reasonably likely to possess information relevant to whether Penn subjected Jewish employees to a hostile work environment based on religion.
But despite that, the court stayed its decision, because “[t]he irreparable-harm factor in this high-profile administrative subpoena enforcement action tilts in Penn’s favor, albeit barely,” and because of the public interest “in the orderly resolution of this case through the ordinary appellate process”:
Penn asserts a successful appeal would not prevent or fully rectify its disclosure of the affected employees’ information to the EEOC. The EEOC responds that if respondents prevail on appeal, the Third Circuit Court of Appeals can order the EEOC to destroy the information Penn turned over. But that would not prevent or fully rectify the initial disclosure of the information to the EEOC….
