“Does Charging Party’s Receipt of a Right-to-Sue Letter and Commencement of a Lawsuit Divest the EEOC of its Investigative Authority Over That Charge?”

This Split Circuits examines the question of whether the subpoena power of the Equal Employment Opportunity Commission (EEOC) ceases when the EEOC issues a right-to-sue letter and the charging party initiates litigation based upon that charge. The circuits that have weighed in on this issue are split, with the Ninth Circuit recently ruling in EEOC v. Federal Express Corp. that “even though the EEOC normally terminates the processing of the charge when it issues the right-to-sue notice, it can, under limited circumstances, continue to investigate the allegations in the charge, which includes the authority to subpoena information relevant to that charge.” The Ninth Circuit ruling is in line with the position of the EEOC. In contrast, the Fifth Circuit has taken the opposite position, holding in EEOC v. Hearst Corp. that “the EEOC may not continue an administrative investigation based upon an individual’s charge once the charging party has been issued a right-to-sue letter and has initiated litigation based upon that charge.”

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