Issue 17 — Protecting Trust Amid Scrutiny: Penn’s Battle with the EEOC

Last month, the Equal Employment Opportunity Commission (EEOC) filed a subpoena enforcement action in court against Penn. The filing accuses the university of failing to comply with a subpoena issued as part of its Title VII investigation for employment discrimination against Jews at Penn.

This dispute centers around a request Penn has refused to fulfill: turning over the names and personal contact information of Jewish faculty, staff, and student workers, as requested by the EEOC. Penn maintains it has cooperated with the investigation but that this final request crosses a line, “violating [Jewish employees’] privacy and trust.” 

As the EEOC asks a federal court to compel Penn to respond, Penn’s community has largely rallied behind the university’s position. Faculty, staff, and students have voiced concern that the request risks exposing Jewish employees and undermining confidence in systems designed to report and address discrimination. 

Penn faces a difficult balancing act. The past few years have revealed antisemitism on campus, and the university must confront it directly. This includes allowing the EEOC investigation to continue. But it also must protect the safety, privacy, and trust of its employees, especially when those protections themselves enable discrimination reporting.

In December of 2023, EEOC Commissioner Andrea Lucas (C’ 08) launched an investigation into Penn’s employment practices, alleging that Jewish employees had been subjected to a hostile, antisemitic work environment beginning in November 2022.

The investigation is unusual because it was not initiated by employee complaints filed with the EEOC. Instead, Lucas argued that employees may have been too scared to come forward themselves and therefore brought the case forward as a commissioner-led investigation, a rare but permitted situation.

Over the following two years, the EEOC began its investigation into the university, gathering information through public sources and materials provided by Penn. This November, the EEOC escalated the dispute by filing a subpoena enforcement action against Penn. It alleges noncompliance with a subpoena seeking identifying and contact information for a broad set of employees and student workers whom the EEOC believes may have experienced or witnessed antisemitism. The EEOC hopes to use this information to contact and interview employees to further its investigation.

Penn has refused to produce those lists. After partially modifying its request and giving Penn additional time, the EEOC asked a federal court in mid-November to order Penn to formally justify its refusal.

To complete the investigation, the EEOC wants to “locate employees exposed to this harassment and to identify other harassing events not noted by [Penn].” The university does not track employees by religion, so the EEOC plans to use involvement in matters relating to antisemitism and/or Judaism as proxy.

The subpoena seeks the first and last name, position at the university, dates of employment, and contact information (including phone number, email address, and mailing address) for all university employees (including faculty, staff, and student workers) who:

​​After Penn refused to turn over this information, the EEOC asked the court to require Penn to justify its noncompliance. The court will then decide whether the subpoena is enforced, modified, or rejected.

At this point, the EEOC is not accusing Penn of violating Title VII. Instead, it is asking the court to answer a narrower question: does Penn have to provide the information the EEOC says it needs to finish its investigation?

The court’s first step is likely to ask Penn to formally explain why it believes the subpoena should not be enforced. Then, given arguments from both Penn and the EEOC, the court will decide whether to enforce the subpoena. This procedural stage is not about deciding whether antisemitism occurred or whether Penn acted appropriately, but whether the EEOC is working within its authority. 

Historically, courts tend to give the EEOC broad leeway at this stage, often compelling compliance in similar cases so long as the EEOC can prove the information would help them prove that discrimination has occurred.

That said, courts do not always enforce subpoenas exactly as written. Partial enforcement is possible: narrowing the timeframe, clarifying the categories, or limiting the scope of the data. For Penn and the EEOC, this could lead to a back-and-forth process in deciding the final scope of the request.

If the court orders compliance, Penn could either produce the information or appeal. An appeal would not necessarily automatically pause enforcement, leaving open the question of whether Penn would have to hand over the data while litigation continues.

Because subpoena enforcement cases are typically treated as standalone proceedings, a final ruling can usually be appealed right away, though an appeal does not automatically pause compliance. That raises a practical question the court may also have to address: whether Penn must turn over the information while any appeal proceeds.

For now, the dispute remains procedural but meaningful. Whatever the outcome, the ruling will shape how much access the EEOC has to information about Jewish employees and their experiences on campus long before any findings on discrimination are made.

Penn says that it has cooperated with the EEOC’s investigation while drawing a firm line at providing identifying lists. That stance has drawn broad support from the Penn community.

Last week, Penn’s Faculty Senate passed a resolution backing Penn’s refusal. The American Association of University Professors’ Penn chapter (AAUP - Penn) condemned the EEOC’s “illegal” request. Hundreds of Penn faculty, staff, students, and other community members signed a petition in support, and prominent campus Jewish groups Penn Hillel and MEOR Penn (a national Jewish mentorship and leadership program with a chapter at Penn) issued a statement commending the fight against antisemitism but warning against the risks of compiling such lists.

Overall, the Penn community has been steadfast in opposing the EEOC’s request.

In a functioning system, the hardest step is the first one: speaking up. If Penn employees come to believe that participation in a listening session, a complaint, or even a Jewish-affiliated space can later be turned into a searchable list, many may withdraw or choose silence instead.

Penn’s past few years have included real incidents of antisemitism affecting faculty, staff, and students, as the EEOC’s filing describes. But compiling a list of Jewish employees is unlikely to curb antisemitism. Instead, it worries many community members, especially given the history of similar lists, and may discourage voluntary cooperation.

Penn has already reached out to community members who filed antisemitism reports and provided the EEOC with information of those who chose to have their identities be public. 

Other complaints, contributions to listening sessions, or claims on antisemitism were designed to be anonymous, as anonymity is often what makes disclosure possible. Forcing identification doesn’t strengthen reporting, it chills it.

There are more constructive paths forward. The EEOC could abandon the subpoena and instead partner with Penn to issue broad, campus-wide outreach. This could include a series of emails and announcements to all employees, encouraging anyone with relevant experiences to come forward, either anonymously or publicly. That approach may help the EEOC locate witnesses without turning protected participation into exposure.

The only real way out of this bind is trust. There must be confidence that reporting systems protect people rather than expose them and confidence that Penn will act decisively when discrimination is raised. Without that trust, neither investigations nor reforms can succeed.

Curated highlights from this week’s Penn news

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