Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY—E.D. Pa.: EEOC can enforce subpoena against U Penn seeking information of antisemitic harassment on campus, (Apr 1, 2026)

By Kathleen Kapusta, J.D.

“In the wake of Hamas’s October 2023 terrorist attack on Israel, Penn students and employees experienced ‘pernicious acts of antisemitism’ on Penn’s campus.”

Granting the EEOC’s application for enforcement of its administrative subpoena seeking from the University of Pennsylvania contact information of potential victims or witnesses of antisemitic harassment, a federal district court in Pennsylvania found EEOC Commissioner’s December 2023 charge that Penn engaged in a pattern or practice of harassment of Jewish employees valid and its subpoena did not violate the U.S. Constitution. Accordingly, the court ordered Penn to respond to the subpoena but without revealing any employee’s affiliation with a specific organization (EEOC v. Trustees of the University of Pennsylvania, No. 25-6502 (E.D. Pa. Mar. 31, 2026)).

Charge. After the university’s president and other affiliated persons made statements indicating that individuals had been subjected to antisemitism on campus, including describing “vile, disturbing antisemitic emails that threatened violence” against certain employees, the EEOC Commissioner, on December 2023, issued a charge claiming that since November 2022, Penn failed to provide Jewish faculty and employees a work environment free from religious harassment in violation of Title VII.

Subpoena. In July 2025, it issued an administrative subpoena seeking the names of employees who reported antisemitic harassment to Penn; the Jewish-related organizations on campus and the private contact information of the employee members in each organization; the private contact information of employees in Penn’s Jewish Studies Program; the private contact information of employees who participated in Penn’s March 2024 listening sessions on antisemitism; and the private contact information of employees who received a Penn survey on antisemitism.

Penn and several intervenors opposed the subpoena. They argued among other things that it requires Penn to disclose the affected employees’ affiliation with specific Jewish-related organizations on campus and would reveal sensitive information such as whether an employee is a Zionist or an anti-Zionist or whether they support or oppose Israel. Acknowledging that concern, the EEOC modified its request to obtain the contact information of employees in Jewish-related organizations “without reference to any[] [employee’s] particular organizational affiliation.”

Method of discrimination. Penn next argued that the subpoena failed to allege a method of discrimination. Disagreeing, the court noted that the charge alleged Penn maintained a hostile work environment based on religious harassment against Jewish employees. It also identified the “publicly available information” that prompted the charge including, among other things, Yakoby v. Trustees of University of Pennsylvania, a federal court complaint against Penn by Jewish students alleging it tolerated a hostile educational environment, and the public statements by its president and others connected to the school. Based on this, the court found Penn had fair notice of the allegations and it was alerted to the type of employment records that might be relevant to the EEOC’s investigation such as records of employees who made allegations of antisemitic harassment.

Hostile work environment. As to its assertion the information referenced in the charge failed to demonstrate a hostile work environment, Penn noted that the court had dismissed Yakoby and, in doing so, had noted that the university responded to the antisemitic incidents and had made efforts to redress the problems. Further, Penn argued, protests and expressions on matters of public concern on its campus “do not equate to... harassment.” Explaining that it could not “use a subpoena enforcement action ‘as an opportunity to test the strength of the underlying [charge],’” the court found the charge alleges hostile work environment based on religious harassment in the form of derogatory language, messages, and threats of violence.

Relevance. Pointing out that the EEOC can obtain evidence relevant to the charge under investigation, the court noted that here it sought contact information of employees in Jewish-related organizations on campus and the Jewish Studies Program. These employees, said the court, were reasonably likely to have information relevant to whether Penn subjected Jewish employees to religious discrimination.

Penn also argued that Jewish-related organizations on campus are “connected to the educational environment at Penn, not the workplace,” and that the charge did not state that Penn maintained a hostile work environment within the Jewish Studies Program in particular. The court, however, explained that employees in Jewish-related organizations and academic programs are reasonably likely to have information relevant to whether Penn maintained a hostile work environment on the basis of antisemitic harassment.

As to Penn’s contention the request for information is underinclusive because employees unconnected to Jewish-related organizations or the Jewish Studies Program may also have relevant information, the court noted that it cited no authority for the proposition that Title VII’s relevance requirement imposes an under-inclusiveness limitation. Moreover, said the court, “had the EEOC cast a wider net, as it initially contemplated, Penn would argue that the subpoena is overly broad and burdensome. The subpoena seeks contact information for employees most likely to have information relevant to the charge. That suffices for relevancy.”

Overly burdensome. Nor was the court persuaded by Penn’s assertion the subpoena was overly burdensome as it offered no estimates of the number of documents it would be required to produce or the cost to produce those documents. Nor did it argue that the subpoena threatened its normal business operations.

Also rejected was Penn’s contention the EEOC could conduct its investigation in another way. Specifically, it argued that it could inform its employees of the EEOC’s investigation so they could contact the EEOC directly if they wanted. But this, said the court, has nothing to do with whether the subpoena imposes a difficult burden. Nor did its argument that enforcement of the subpoena would deter employees from reporting harassment in the future have anything to do with whether the subpoena imposed an undue burden on it.

Informational privacy. Penn also argued that the subpoena violated the U.S. Constitution, including by offending the affected employees’ substantive due process right to informational privacy. While it argued that those employees have a privacy interest in the fact that they have affiliations with Jewish-related organizations on campus and the Jewish Studies program, Penn did not show this information was even private and the Jewish Studies Program lists its faculty and staff members’ names and pictures on its public-facing website.

As to Penn’s claim its employees have a privacy interest in the fact that they are in some Jewish-related organizations on campus because disclosure will create a “serious safety risk,” there was no evidence showing enforcement of the subpoena would create a “substantial risk of serious bodily harm.” And while the intervenors argued that the EEOC was attempting to “establish a central registry of the University’s Jews” which may result in “frightening implications” based on “historical echoes,” the court noted that “comparing the EEOC’s investigation into antisemitism at Penn with Nazi Germany is counterproductive, as counsel acknowledged by attempting to backtrack from such analogies.”

Contact information. Nor did Penn offer any evidence to show a reasonable probability the affected employees’ private contact information would become public or that if it did, the employees would face a credible risk of harm. Moreover, said the court, even if the subpoena seeks protected information, the EEOC has a substantial interest in investigating the charge, the Commissioner issued a valid charge, and, in issuing a subpoena pursuant to that charge, the EEOC seeks to vindicate the public interest in investigating charges of workplace discrimination. Further, said the court, the EEOC routinely uses employees’ contact information during investigations to protect their Title VII rights.

Next, even though Title VII protects against unauthorized disclosure of information, Penn argued that the EEOC is not immune to data breaches. But “data breaches are a possibility any time the Government stores information,” observed the court, and the “mere possibility that security measures will fail provides no proper ground for a broad-based attack on government information-collection practices.” Nor was the court persuaded by Penn’s contention that DOGE coerced the Social Security Administration to share private information with it in violation of federal law and it might coerce the EEOC to share the affected employees’ information. There was simply no record evidence, said the court, to support this argument.

As to the intervenors’ argument that 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, the court found these were “unserious political arguments, not serious legal ones, which, as counsel admitted, undercut her position.”

Right to associate. Penn next argued that the subpoena would make the affected employees less likely to participate in the Jewish-related organizations on campus to which they belong. Assuming that exacting scrutiny applies here, the court found the EEOC has an important interest in investigating the charge and there was a substantial interest between its interest and its subpoena.

Moreover, its interest reflects the actual burden imposed on the affected employees’ ability to associate with Jewish-related organizations on campus, said the court, noting that the EEOC is no longer asking Penn to disclose any affected employee’s membership in a particular organization. Further, the subpoena does not require Penn to publicly disclose the affected employees’ information and there was no evidence showing that enforcement of the subpoena would objectively chill the affected employees’ ability to associate.

Finally, said the court, the subpoena as modified is narrowly tailored. And while the intervenors argued that, as an alternative to the subpoena, Penn could tell its employees about the investigation and provide them with contact information for the EEOC or the EEOC could invite Penn employees to contact it through a hotline, the court found these proposals inadequate. Not only does putting the burden on employees to come forward on their own defeat the point of a commissioner’s charge of discrimination, there is a significant risk employees would be less likely to approach the EEOC if they are told to do so by their employer.

Rejecting Penn’s remaining constitutional challenges, the court granted the EEOC’s application for enforcement.

The case is No. 25-6502.

Judge: Pappert, G.

Attorneys: Debra M. Lawrence for the EEOC. Debo P. Adegbile (Wilmer Cutler Pickering Hale and Dorr) for The Trustees of the University of Pennsylvania.

Companies: Trustees of the University of Pennsylvania

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