Labor & Employment Law Daily Wrap Up, PROCEDURE—E.D. Wis.: Northwestern Mutual must comply with EEOC subpoena probing employee’s DEI bias claims, (Jul 29, 2026)

By Kathleen Kapusta, J.D.

The EEOC chair, in a press release, stated that “When we see clear indications that an employer’s DEI program may violate federal prohibitions against discrimination, we will use the full extent of our authority—including subpoena enforcement—to obtain the information needed to investigate and take appropriate action.”

Granting the EEOC’s motion to enforce an administrative subpoena related to its investigation of a charge by a former Northwestern Mutual Life Insurance Company (NML) employee who alleged discrimination based on the company’s diversity and inclusion policy, a federal court in Wisconsin found Northwestern’s objections mistimed, and therefore misplaced. Even if the company is correct on the merits, said the court, “the EEOC has a statutory obligation to investigate the charge that has been made, and NML has a duty to comply with the agency’s investigatory subpoena” (EEOC v. Northwestern Mutual Life Insurance Co., No. 25-mc-0053-bhl (E.D. Wis. July 27, 2026)).

Charge allegations. In March 2025, the employee, a white male employed as an Anti-Money Laundering Officer, filed a charge with the EEOC alleging that NML, beginning in 2020, enhanced its diversity and inclusion (DI) policy to advance and promote women and people of color and when he complained he was denied a promotion to vice president and rejected for a chief compliance officer position that instead went to a less qualified female coworker. He not only alleged discrimination based on his race, sex, and national origin as well as retaliation, but also he alleged that NML’s DI policy discriminated against others based on their sex (male), race (white), and national origin (American) in violation of Title VII.

Subpoena. The EEOC notified NML of the allegations and the company responded with a position statement denying any unlawful discrimination. The EEOC then sent a request for information and records to which the company provided only a small amount of materials. When subsequent negotiations proved fruitless, the EEOC sent an administrative subpoena demanding production of 21 categories of documents and information and an interview with the VP of DI.

In response, NML, denying any discrimination and accusing the agency of having an improper motive, petitioned it to revoke or modify the subpoena. The EEOC denied the petition and ultimately filed to enforce the subpoena. In connection with the filing, the EEOC chair, in a press release, stated that “Title VII charges the EEOC with confronting unlawful employment practices. When we see clear indications that an employer’s DEI program may violate federal prohibitions against discrimination, we will use the full extent of our authority—including subpoena enforcement—to obtain the information needed to investigate and take appropriate action.”

Sufficiently specific? In challenging enforcement of the subpoena, NML first argued that the subpoena exceeded the EEOC’s authority because the underlying charge and corresponding notice lacked the detail necessary to support an investigation into the alleged systemic discrimination. Disagreeing, the court noted that the U.S. Supreme Court, in its 1984 EEOC v. Shell Oil Co. decision, emphasized the relatively light burden that must be overcome to establish a valid charge under Title VII and the applicable EEOC regulations.

According to the Shell Oil Court, the statute merely requires that the charge be “in writing,” made “under oath or affirmation,” and “contain such information and be in such form as the Commission requires.” Moreover, the Court specifically rejected the notion, as asserted by NML, that an employer could avoid an EEOC investigation into allegations of discrimination by insisting on its own innocence and demanding the agency provide greater detail before the investigation had even begun.

Plainly satisfied requirements. “Consistent with the Supreme Court’s teaching in Shell Oil, the charge at issue here also “plainly satisfies” the statutory and regulatory requirements,” said the court, noting that the charge alleged the employee and similarly situated individuals were discriminated against based on their sex (male), race (white), color, and national origin (American) and identified the method of discrimination—NML’s enhanced DI policy, which the company allegedly used to unlawfully advance and promote less qualified women and people of color. It also identified two specific positions impacted—the VP and chief compliance officer position—and stated that the discrimination commenced with the enactment of the DI policy “in or about 2020.”

Although the charge did not identify any specific positions impacted by the alleged systemic discrimination, the Seventh Circuit has explained that the EEOC can investigate charges of systemic discrimination against groups of protected employees without first identifying specific jobs or positions that may have been impacted. And while the Seventh Circuit has since stated that a charge should “identify as precisely as possible the appropriate area of inquiry,” it explained that a charge’s “appropriate area of inquiry” can be quite broad while remaining valid.

Stop it before it begins. NML also argued that the EEOC’s refusal to provide more details robbed it of the opportunity to defend itself and if the agency provided additional facts, it could raise a defense under Section 713 and stop the investigation before it begins. But once a valid charge is made, the court explained, the EEOC must provide notice of the charge to the employer, at which point the agency’s jurisdiction is secured and its duty to investigate is triggered. “At this stage, the Court does not adjudicate the merits of the employee’s allegations or the employers’ defenses” but rather confirms the validity of the charge and the agency’s jurisdiction.

Nor, said the court, can NML insist that the EEOC provide it with information relevant to its potential defenses as a condition of responding to the subpoena. A charge, the court continued, “is not required to provide information sufficient to establish a defense to it, and a respondent cannot condition its cooperation with an agency investigation on the agency’s own production of information related to the charge.” If the EEOC’s investigation results in a lawsuit, NML will then have the opportunity to take discovery and present a defense but it does not have the right to discovery as a condition of cooperating in an investigation, the court stated.

Objections to press release. As to the company’s complaint that the EEOC’s press release wrongfully accused it of discrimination by suggesting its DI policies gave “clear indications” of Title VII violations, the release simply confirmed that when the EEOC identifies a program that “may violate federal prohibitions against discrimination,” it will use its subpoena enforcement powers to investigate if necessary. It did not indicate that the EEOC improperly prejudged the charge against NML or that the administrative subpoena was issued for an improper purpose.

Specific objections. The company next objected to specific aspects of the subpoena, including its request to produce personnel files, excluding leave and benefits information, for specific executives, department heads, and company officers listed in its position statement. Here, observed the court, if NML found these individuals significant enough to identify in its position statement, the requested materials are relevant. As to its objection on privacy grounds, the court explained that it would enter a protective order to address any legitimate privacy concerns.

Regarding the EEOC’s request for production of information and documents related to NML’s affirmative action plans, documents it used to develop its DI policies, and complaints made about the DI policies and their implementation, the Seventh Circuit, said the court, has confirmed that affirmative action plans can be relevant to determining whether Title VII was violated and courts are required to apply an even broader interpretation of relevance in a subpoena enforcement proceeding. Thus, the affirmative action plans are relevant.

Further, said the court, while the company appeared to argue that the underlying charge pertains to discrimination on the basis of race, sex, and national origin, and therefore DI policies outside of those categories would bear little light on that charge, the company was presented with a valid charge that its DI policies resulted in discrimination and all of the challenged requests were specifically tied to the company’s allegedly unlawful DI policies. “The requests therefore ‘cast light’ on the allegations in charge and fall within the broad definition of relevancy applicable in the administrative subpoena context.”

In response to the EEOC’s request for documents relating to its training programs, NML argued that the requests impermissibly called for the production of documents applicable to its field agents, whom it contends are independent contractors. Finding these materials relevant, the court explained that the company’s “communications with and training of its independent contractors could certainly cast light on its parallel conduct and intentions toward its employees.”

Nor was the court persuaded by the company’s argument that because the employee worked exclusively in its Milwaukee office, the EEOC could not request documents pertaining to its financial advisers who work throughout the country. Because the charge involved alleged systemic discrimination, the requested information could cast light on issues related to that alleged discrimination against employees in other positions, work units, and locations, said the court.

Privacy concern. Addressing finally the company’s objection to the EEOC potentially sharing information obtained through the subpoena with the employee, including information in personnel files, the court explained that the agency is allowed to share with the charging party information within his own investigative file that is relevant to his claim. It further explained that it has the authority to enter a protective order under FRCP 26(c) when asked to enforce an administrative subpoena.

Finding good cause here to enter a protective order to protect other NML employees’ privacy interests while also ensuring that the EEOC can investigate the charge, the court stated that it would allow the EEOC to share only those portions of its investigatory files necessary to consult with the employee on his specific claims of discrimination. Accordingly, it precluded the EEOC from sharing with the employee any materials obtained during the investigation that relate to his former colleagues’ personnel files and required the agency to take affirmative steps to protect the company’s and its employees’ legitimate privacy interests and limit any disclosures to the employee. It also prohibited the EEOC from sharing files or information except where necessary to consult with the employee on the strength of his allegations.

The case is No. 25-mc-0053-bhl.

Judge: Ludwig, B.

Attorneys: Jeanne B. Szromba for the EEOC. John A. Haase (Godfrey & Kahn) for Northwestern Mutual Life Insurance Co.

Companies: Northwestern Mutual Life Insurance Company

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