EEOC May Subpoena Penn’s Records as to “Jewish-Related Organizations” (and Others) in Investigation of Anti-Semitic Harassment at Penn

From Judge Gerald Pappert (E.D. Pa.) yesterday in EEOC v. Univ. of Pa.:

Based on public statements by the University of Pennsylvania’s president and others affiliated with the school that individuals had been subject to antisemitism on Penn’s campus, United States Equal Employment Opportunity Commissioner Andrea K. Lucas issued in December of 2023 a charge that Penn engaged in a pattern or practice of harassment of Jewish employees in violation of Title VII of the Civil Rights Act of 1964. In July of 2025, the EEOC issued an administrative subpoena to gather evidence relevant to that charge.

The EEOC viewed this as a “garden variety” use of one of its common investigative methods, where it seeks contact information for possible victims of the employer’s alleged misconduct or witnesses thereto. But unlike investigations into, for example, sexual harassment or racial discrimination, the subpoena sought information pertaining to people’s faith, making its requests more intrusive and calling for greater sensitivity, something the EEOC now acknowledges.

One of those requests in particular sought, among other things, lists of school groups and organizations “related to the Jewish religion,” including personal contact information for Penn employees in those groups. Though ineptly worded, the request had an understandable purpose—to obtain in a narrowly tailored way, as opposed to seeking information on all university employees, information on individuals in Penn’s Jewish community who could have experienced or witnessed antisemitism in the workplace. Penn resisted the subpoena on various grounds and when the parties could not resolve their differences, the EEOC filed this subpoena enforcement action.

Penn and other groups and associations the Court permitted to intervene significantly raised the dispute’s temperature by impliedly and even expressly comparing the EEOC’s efforts to protect Jewish employees from antisemitism to the Holocaust and the Nazis’ compilation of “lists of Jews.” Such allegations are unfortunate and inappropriate. They also obfuscate the Court’s limited role and the discrete legal issues before it. And the EEOC no longer seeks any employee’s specific affiliation with a particular Jewish-related organization on campus….

The EEOC’s subpoena … seeks, among other things, (1) the names of employees who reported antisemitic harassment to Penn; (2) the Jewish-related organizations on campus and the private contact information (personal phone number, email address and mailing address) of the employee members in each organization; (3) the private contact information of employees in Penn’s Jewish Studies Program; (4) the private contact information of employees who participated in Penn’s March 2024 listening sessions on antisemitism; and (5) the private contact information of employees who received a Penn survey on antisemitism.

The court rejected (among other things) the argument that the subpoena unconstitutionally interfered with employees’ privacy:

Penn argues the affected employees have a [constitutionally protected] privacy interest in (1) their mailing addresses and personal phone numbers and (2) the fact that they participated in Penn’s listening sessions on antisemitism and received a Penn survey on antisemitism. But this information is unlike a person’s medical records, prescription medications, HIV diagnosis, sexual identity, or debts and salary [citing cases related to each -EV]. While such materials may reveal “intimate facts of a personal nature,” mailing addresses, phone numbers, participation in a campus event and receipt of a school survey do not….

Penn also argues its employees have a privacy interest in the fact that they have affiliations with Jewish-related organizations on campus and the Jewish Studies Program. But Penn does not show that this information is even private. Information is private if it is “general[ly] unavailab[le]” and a person “treat[s]” it as “confidential.” Penn offers no argument as to whether its employees’ mere affiliation with Jewish-related organizations and the Jewish Studies Program is generally unavailable, or whether the employees treat this information as confidential. And as the EEOC points out, the Jewish Studies Program lists its faculty and staff members’ names and pictures on its public-facing website. Penn doesn’t respond to this. {The EEOC cannot rely on the work contact information of employees listed on the Jewish Studies Program’s website. It seeks the employees’ personal information because it wishes to contact them without Penn monitoring any communications.}

Finally, respondents argue the affected employees have a privacy interest in both their private contact information and the fact that they are in some Jewish-related organization on campus because disclosure will create a “serious safety risk.” Information may be protected if disclosure threatens “personal security.” In Kallstrom v. City of Columbus (6th Cir. 1998), for example, three undercover officers testified against gang members in a criminal case. During trial, the City of Columbus disclosed the officers’ names and addresses along with the names and addresses of the officers’ relatives. Because the gang had a “propensity for violence” and would “likely … seek revenge,” the Sixth Circuit held substantive due process protected the officers’ personal information.

Respondents offer no evidence to show enforcement of the subpoena would create a “substantial risk of serious bodily harm.” They refer first to Nazi Germany. Penn, for example, argues “allowing regimes to collect lists of Jewish people has not boded well for their safety.” And the intervenors assert the EEOC seeks to “establish a central registry of the University’s Jews” which may result in “frightening implications” based on “historical echoes.” But comparing the EEOC’s investigation into antisemitism at Penn with Nazi Germany is counterproductive, as counsel acknowledged by attempting to backtrack from such analogies.

Respondents next believe the EEOC may publicly disclose the affected employees’ information which may lead to acts of private violence. But … respondents offer no evidence to show a reasonable probability the affected employees’ information will become public. And they offer no evidence to show that, if their information did become public, the affected employees would face a credible risk of harm. They state the Nation’s “political environment” is “saturated with unvarnished hate, including antisemitism.” But this “generalized” statement “fall[s] well short of the [requisite] substantial, direct, and individualized risk of bodily harm.” …

Title VII protects against “unauthorized disclosure” of the information. A “statutory penalty for unauthorized disclosures” is sufficient to safeguard employee information submitted to the Government. Under Title VII, it is “unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority … prior to the institution of any proceeding … involving such information.” …

Penn argues the EEOC is “not immune to data breaches.” But “data breaches are a possibility any time the Government stores information.” NASA v. Nelson (2011). The “mere possibility that security measures will fail provides no proper ground for a broad-based attack on government information-collection practices.”

Respondents also argue the Department of Government Efficiency coerced the Social Security Administration to share private information with it in violation of federal law. Given this, they suggest DOGE may coerce the EEOC to share the affected employees’ information.  There is no evidence to support this argument. Nothing in the record shows how DOGE coerced the Social Security Administration to share information, what information the Social Security Administration shared or what federal law the Social Security Administration violated. The Court has no grounds upon which to conclude respondents have a reasonable justification for its purported fears.

The intervenors also argue the current presidential administration has “made an unprecedented push to share data across the federal government,” and in support, cite a March 2025 executive order. The order directs agency heads to, consistent with law, ensure that federal officials designated by the President or agency heads shall have access to, among other things, unclassified agency records and data. Nothing indicates the EEOC is required to share information it gathers during an investigation with other federal agencies.

Finally, the intervenors argue the affected employees’ information may “fall into the wrong hands” within the Government because two online articles reported that current administration officials have ties to antisemites. National Public Radio, for example, reported that a White House official worked on Andrew Tate’s legal team and attended a Nick Fuentes rally. And the New York Times reported this same official said in a text message that he had a “Nazi streak.” These are unserious political arguments, not serious legal ones which, as counsel admitted, undercut her position.

For similar reasons, the court rejected the argument that “the subpoena infringes the affected employees’ right to associate with Jewish-related organizations on campus”:

Respondents believe enforcement of the subpoena would make the affected employees less likely to participate in the Jewish-related organizations on Penn’s campus to which they belong…. [But even if this requires that the subpoena decision be judged under “exacting scrutiny,”] the EEOC satisfies it.

Under exacting scrutiny, 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 to the interest it promotes.

The EEOC has an important interest in investigating the charge of discrimination. When the EEOC issues a subpoena pursuant to a valid pattern-or-practice charge, it acts in the public interest to investigate allegations of systemic discrimination in the workplace.

There is a substantial relation between the EEOC’s interest and its subpoena. Commissioner Lucas alleges Penn subjected Jewish faculty, staff and other employees to a hostile work environment based on religion. The subpoena seeks contact information for employees in Jewish-related organizations because they are reasonably likely to have information relevant to the charge.

The EEOC’s interest reflects the actual burden imposed on the affected employees’ ability to associate with Jewish-related organizations on campus. The EEOC is no longer asking Penn to disclose any affected employee’s membership in a particular organization. In compelled-disclosure cases, the Government usually compels organizations to reveal information about their members or supporters. Or the Government might compel an individual to disclose the particular organizations to which he belongs or supports. That is no longer the case here.

Thus, while respondents assert that disclosing an employee’s membership in a specific Jewish-related organization may reveal whether he or she is a Zionist or an anti-Zionist, or whether he or she supports or opposes specific political positions, these burdens are misplaced. Because information provided in response to the subpoena will not reveal any employee’s affiliation with a specific organization, it does not impose a burden akin to the one imposed in the typical compelled-disclosure scenario.

Next, the subpoena does not require Penn to publicly disclose the affected employees’ information, which “reduce[s] the burden” imposed. And as explained, respondents fail to show a reasonable probability the EEOC will disclose the information to the public….

The intervenors propose two alternatives that they assert would address, in equal measure, the EEOC’s interest in investigating Commissioner Lucas’s charge. They contend Penn could tell its employees of the EEOC’s investigation and provide them with contact information for the EEOC. Or, they argue, the EEOC could invite Penn employees to contact it through a hotline.

These alternatives are “inadequate.” The first forces the EEOC to speak through Penn. “Messages from [the] EEOC to employees filtered through an employer always risk creating confusion, fear, and mistrust among recipients.” And the EEOC makes a valid point when it says the proposal is “unlikely to yield” any reports of harassment because there is a significant risk employees will be less likely to approach the EEOC if they are told to do so by their employer.

Both proposals, moreover, prohibit the EEOC from contacting potential victims or witnesses of harassment directly. Putting the burden on employees to come forward on their own defeats the point of a commissioner’s charge of discrimination. Commissioner Lucas issued the charge based on publicly available information, so employees did not have to come forward and accuse Penn of wrongdoing.

The EEOC seeks to investigate the charge by contacting potential victims or witnesses of harassment and informing them of their rights. Employees may refuse to participate in the investigation, but the EEOC needs the opportunity to talk to them directly to learn if they have evidence of discrimination….

And the court rejected, for similar reasons, the claims that the subpoena would violate academic freedom, the Religious Freedom Restoration Act, or the Free Exercise Clause.

Debra M. Lawrence represents the EEOC.