Recently, faculty and student groups asked a district court to vacate an order enforcing an Equal Employment Opportunity Commission subpoena seeking the names and contact information of Jewish employees and members of Jewish organizations at the University of Pennsylvania.
We represent Jewish employees nationwide who experience discrimination and harassment in the workplace. Many come to us after reporting swastikas in their offices, enduring antisemitic slurs from coworkers, or facing retaliation after raising concerns about antisemitism. For many of these individuals, filing a charge with the EEOC is the first step toward enforcing their rights under Title VII of the Civil Rights Act.
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That experience gives us a unique perspective on the recent dispute over the EEOC’s subpoena seeking identifying information about Jewish employees. Throughout the litigation, the subpoena was frequently characterized as an effort to create a government “list of Jews.” Those concerns understandably resonated given Jewish history and the importance of protecting religious privacy. But they also obscured an important reality about how civil rights investigations work.
The EEOC argued it was not attempting to catalog Jewish employees because they are Jewish, but rather, it was seeking to identify potential victims and witnesses in an investigation into whether Jewish employees had been subjected to unlawful workplace discrimination and harassment.
Every week, we help employees navigate the EEOC process. One of the first questions we discuss with clients is whether they are the only employee who has experienced discrimination or whether others may have had similar experiences. The answer often determines whether a case involves an isolated incident or evidence of a broader pattern.
Congress designed the EEOC not simply to resolve individual disputes but also to investigate systemic discrimination. A single charge can reveal that an employer’s unlawful practices affect many employees. To determine whether that is true, investigators must be able to identify and speak with individuals who may be part of the affected class.
When the EEOC investigates allegations of race discrimination, it routinely seeks information that helps identify other employees of the same race who may have experienced similar treatment. The same is true for investigations involving sex, age, disability, national origin, or pregnancy discrimination. Identifying members of the protected class is not the objective of the investigation — it is a necessary step toward determining whether discrimination occurred and whether additional victims may be entitled to relief.
Employers generally do not maintain records identifying employees by religion, whereas they often possess records showing employees’ sex, age, race (for EEO reporting), disability accommodations, or similar demographic information. As a result, identifying potential Jewish employees may require relying on proxies or affiliations that potentially raise more significant privacy and associational concerns than requests involving sex or race. But the underlying investigative principle is the same: The EEOC routinely seeks identifying information about members of a protected class to determine whether discrimination extends beyond the charging party.
From our experience representing Jewish employees, one of the greatest barriers to addressing workplace antisemitism is that victims often believe they are alone. They may not know whether other employees have experienced similar harassment or whether the employer has received comparable complaints. An EEOC investigation can uncover patterns that would otherwise remain hidden and can provide relief not only to the charging party but also to other employees who suffered similar discrimination.
Reasonable people can disagree about whether a particular subpoena is appropriately tailored. Administrative subpoenas are routinely challenged in court, and judicial review serves as an important safeguard to ensure that agencies remain within their statutory authority.
WE OUTLASTED PHARAOH, THE NAZIS, AND THE SOVIETS. MODERN ANTISEMITES ARE NEXT
We have seen firsthand how important the EEOC process can be for Jewish employees. We have represented professors, physicians, lawyers, teachers, and employees across numerous industries who sought the agency’s assistance after experiencing workplace antisemitism. For many, the EEOC provides an opportunity not only to vindicate their own rights but also to protect others from experiencing similar discrimination.
Civil rights laws cannot be enforced without effective investigations. Effective investigations often require identifying the individuals who may have experienced discrimination. When conducted within the limits established by Congress and supervised by the courts, those investigative tools are not extraordinary — they are essential.
Deedee Bitran is Senior Counsel at StandWithUs Saidoff Law, the legal arm of StandWithUs, a non-profit civil rights organization that fights antisemitism.
Mark Pinkert is a litigation and appellate partner with Holtzman Vogel. Holtzman Vogel’s practice groups include government ethics, investigations, tax-exempt organizations, campaign finance and election law, artificial intelligence, privacy, land use and environmental law, commercial litigation, appellate, and constitutional law.
