Many employers assume that once an employee or job applicant files a discrimination lawsuit after receiving a notice of right to sue from the U.S. Equal Employment Opportunity Commission (EEOC), the agency’s involvement in the matter has concluded. However, recent legal developments have clarified that the EEOC may continue its investigation and seek additional information from the employer, even after litigation has commenced.

Quick Hits

• The EEOC’s role does not necessarily end once a notice of right to sue is issued and a lawsuit is filed.
• The Second, Seventh, and Ninth Circuits have held that the EEOC retains investigatory authority even after these events, based on their interpretation of Title VII and EEOC regulations, particularly 29 C.F.R. § 1601.28(a)(3).
• In contrast, the Fifth Circuit has taken the position that the EEOC’s investigatory powers are limited once a lawsuit is filed, resulting in a circuit split that may ultimately require resolution by the Supreme Court of the United States.

An August 25, 2025, decision from the U.S. Court of Appeals for the Second Circuit has affirmed the EEOC’s authority to continue investigating an employer after issuing a right-to-sue notice and after the employee has filed a lawsuit. This decision contributes to an ongoing split among federal circuit courts regarding the scope of the EEOC’s investigatory powers under Title VII of the Civil Rights Act of 1964 and related statutes.

The EEOC’s Investigative Process

An employee or applicant who believes he or she has been the victim of workplace discrimination must first exhaust administrative remedies before filing a federal lawsuit—meaning that the individual must file a charge with the EEOC (except for claims brought under the Equal Pay Act). Once filed, the EEOC’s investigation takes place, which might include gathering information, conducting interviews, and making a determination. More often than not, employers, employees, and job applicants receive notification that a notice of right to sue was issued. Once issued, employees and applicants are free to take the case to federal court and file a lawsuit.

At this point, many employers assume the EEOC’s role is over, and while true for some jurisdictions, it is not the case for others. Several federal circuit courts, including most recently the Second Circuit, have determined that the EEOC may continue to investigate the original charge, even after the aggrieved employee or applicant has filed a lawsuit. This means—at least in those jurisdictions—the EEOC can still issue subpoenas and request additional information from the employer, keeping its investigation active alongside the court proceedings.

The Second Circuit’s Opinion

In In re AAM Holding Corp., the Second Circuit joined the Seventh and Ninth Circuits in holding that the EEOC’s investigatory authority is not extinguished by the issuance of a notice of right to sue or the filing of a lawsuit. The court reasoned that the EEOC’s mandate is to enforce federal anti-discrimination laws in the public interest, and that the statutory language—specifically, the reference to the EEOC’s authority to investigate at “all reasonable times”—supports the agency’s continued involvement. The court also noted that the EEOC may enforce subpoenas to obtain information relevant to its investigation, even after private litigation has begun.

In contrast, the Fifth Circuit, as well as a dissent by Justice Clarence Thomas in a Supreme Court of the United States denial of certiorari, have argued that Title VII distinguishes between the EEOC’s administrative investigation, its enforcement procedures, and the judicial process, and that the agency’s investigatory powers should end once a notice of right to sue is issued and a lawsuit is filed.

Implications for Employers

In summary, the EEOC’s authority to investigate discrimination charges may extend beyond the issuance of a notice of right to sue and the commencement of litigation, depending on the jurisdiction. Until the Supreme Court provides definitive guidance, employers should remain mindful of the evolving legal landscape and the potential for continued administrative proceedings involving the same allegations of a charge of discrimination that the aggrieved employee or applicant is privately litigating. Employers may wish to consider the following:

1. Preparing for Continued EEOC Involvement: The EEOC may continue to investigate and issue subpoenas even after a lawsuit is filed, depending on the jurisdiction.
2. Assessing the Scope of EEOC Requests: Employers retain the right to challenge EEOC subpoenas on grounds such as relevance, overbreadth, duplicity, or undue burden, and may want to carefully review each request.
3. Understanding Jurisdictional Differences: The scope of the EEOC’s authority varies by circuit, so it is important to determine which appellate court’s precedent applies.
4. Maintaining Comprehensive Records: Accurate and organized documentation can facilitate compliance with EEOC requests or support objections.
5. Monitoring Legal Developments: The circuit split increases the likelihood of Supreme Court review, which could clarify the EEOC’s authority nationwide.