On March 31, 2026, U.S. District Judge Gerald J. Pappert of the Eastern District of Pennsylvania issued a significant decision enforcing an Equal Employment Opportunity Commission (EEOC) subpoena directed to the University of Pennsylvania (UPenn). Judge Pappert’s decision addresses the EEOC’s authority to obtain names and contact information for employees potentially affected by or witness to alleged antisemitic harassment. The ruling compels compliance with the subpoena, though it includes a limitation barring disclosure of any employee’s affiliation with any specific organization. The decision has potential implications for employers responding to EEOC investigations nationwide.

What the Court Held

The court held that the EEOC may compel production of employee names and contact information relevant to its charge alleging religious discrimination and hostile work environment, so long as UPenn does not reveal any employee’s ties to particular campus groups. In reaching its decision, the court emphasized the U.S. Supreme Court’s instruction to construe “relevance” in the subpoena context generously and rejected constitutional challenges to the demand. Notably, the decision reinforces the generous relevance and low burden standards governing EEOC subpoenas, confirming that courts will order compliance absent a showing of undue burden or clear overbreadth.

Background and Procedural Posture

• Facts: The EEOC is investigating allegations that UPenn faculty and staff faced antisemitic harassment, including incidents connected to campus protests after the Oct. 7, 2023 attack in Israel and the ensuing war in Gaza. Unlike data on race and sex, employers are not required to maintain employment data regarding religion. The agency therefore sought evidence of names and contact details for employees associated with campus groups and academic programs “related to the Jewish religion,” staff who filed complaints, attendees of 2024 listening sessions held by the University’s antisemitism task force and recipients of a survey on antisemitism.
• Prior Proceedings: After UPenn declined to produce certain categories—particularly contact information for employees whose identification could reveal their Jewish faith or affiliations—the EEOC filed a subpoena enforcement action. At a March 10, 2026 hearing, the court explained that the subpoena met the “low bar” for enforcement and has now granted the EEOC’s application, with a carveout precluding disclosure of affiliations with specific Jewish-related organizations.
• Scope: This federal district court order binds the parties in this matter. While not precedential nationwide, it applies well-established Supreme Court standards for EEOC subpoenas and will be persuasive for employers responding to similar requests in other jurisdictions.
   

Key Takeaways

• Legal Standard Clarified: Courts are likely to construe “relevance” to EEOC subpoenas generously and enforce requests for potential victim and witness contact information tied to a facially valid charge, rejecting constitutional challenges absent exceptional circumstances.
• Compliance Exposure: Employers may be compelled to produce sensitive employee-identifying information in religion-based harassment investigations; failure to comply may risk enforcement actions and potential sanctions.
• State-law Interaction: State privacy or employment laws rarely override federal subpoena obligations; however, employers should ensure awareness of applicable privacy requirements.
   

Who Is Affected

This decision primarily affects institutions of higher education and other employers facing EEOC investigations into religion-based harassment or hostile work environment allegations, in Pennsylvania and beyond. Employers operating across multiple jurisdictions should assess how local privacy frameworks and existing EEOC guidance intersect with the federal standards applied here.

Open Questions and Next Steps

Open issues include the contours of permissible privacy carveouts (such as limits on disclosing affiliations with specific organizations), the handling of highly sensitive identifiers and how courts will weigh undue-burden arguments tied to assembling contact lists. UPenn may seek further judicial review, and the EEOC may issue associated guidance. Employers should monitor any appellate activity in the case and be on the lookout for agency guidance.

Bottom Line

This decision reinforces the broad scope of the EEOC’s subpoena power and the low bar for the relevance standard governing enforcement. Employers should promptly review protocols and policies on how data on employees are maintained, update documentation where needed and train stakeholders on the applicable legal standards to reduce risk and position themselves for agency scrutiny under this framework.

Bond continues to monitor these developments and will provide further updates as they arise. For questions or assistance, contact Brit Schoepp-Wong, Rachel Kreutzer or any member of the higher education practice.

On March 19, 2025, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) released two technical assistance documents focused on educating the public about unlawful discrimination related to diversity, equity and inclusion (DEI) in the workplace: a one-page technical assistance document, “What To Do If You Experience Discrimination Related to DEI at Work,” and a question-and-answer technical assistance document, “What You should Know About DEI-Related Discrimination at Work.” EEOC Acting Chair Andrea Lucas emphasized that these technical assistance documents will help employees know their rights and help employers take action to avoid unlawful DEI-related discrimination.

In the technical assistance documents, the EEOC emphasized that DEI is a broad term not defined in Title VII and noted that under Title VII, DEI initiatives, policies, programs or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s sex, race or another protected characteristic. The EEOC further noted that Title VII protects employees, potential and actual applicants, interns and training and apprenticeship program participants.

The documents provide some examples of employer actions that might create DEI-related claims, including:

• Limiting, Segregating and Classifying. Separating employees into groups based on race, sex or another protected characteristic when administering DEI or other trainings or other privileges of employment, even if the separate groups receive the same programming content or amount of employer resources. Limiting membership in workplace groups like Employee Resource Groups (ERG) or other employee affinity groups, to certain protected groups (including by making available company time, facilities or premises, and other forms of official or unofficial encouragement or participation).
• Disparate Treatment. Discriminating against applicants or employees in the terms, conditions or privileges of employment, including hiring, selection for interviews (including placement or exclusion from a candidate “slate” or pool), access to or exclusion from training (including training characterized as leadership development programs), internships (including those labeled as “fellowships” or “summer associate” programs”), mentoring/sponsorship programs, access to workplace networking/networks, etc.
• Retaliation. Retaliating against employees who oppose DEI programs or trainings. Reasonable opposition to a DEI training may constitute a protected activity if the employee provides a fact-specific basis for his or her belief that the training violates Title VII.
• Harassment. Harassment during DEI training which, depending on the facts, may lead to a colorable hostile work environment claim.

Additional key takeaways from the documents:

• Reverse discrimination. The EEOC’s position is that there is no such thing as reverse discrimination, noting that there is only discrimination. The EEOC does not require a higher showing of proof for so-called reverse discrimination claims. It applies the same standard of proof to all race discrimination claims, regardless of the race of the victim.
• No business necessity exception for DEI programs. The EEOC noted that Title VII allows employers to raise a bona fide occupational qualification (BFOQ) as an affirmative defense in very limited circumstances to excuse hiring or classifying any individual based on religion, sex or national origin. However, the EEOC emphasized that Title VII does not provide any diversity interest exception to these rules, noting that no general business interest in diversity and equity (including perceived operational benefits or customer/client preference) has ever been found by the Supreme Court to be sufficient to allow race-motivated employment actions.
• No excuse for DEI-related considerations of race, sex or other protected characteristic. For there to be unlawful discrimination, race or sex (or any other protected characteristic under Title VII) does not have to be the sole reason for an employer’s employment action or the but-for (deciding) factor for the action. Under Title VII, an employment action is still unlawful even if race, sex or another protected characteristic was only one factor among many contributing to the employer’s decision or action.
• Covered entities under Title VII. Title VII applies to employers with 15 or more employees, employment agencies (including staffing agencies), entities that operate training programs (including on-the-job training programs) and labor organizations (like unions). Additionally, employers can be liable for the actions of their agents, such as staffing agencies and recruiters.

Bond continues to follow these and related developments closely. Please contact Adam P. Mastroleo, Anthony A. Levitskiy or the Bond attorney with whom you normally work, for questions, concerns and tailored consultation. 

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