• The EEOC’s role does not necessarily end once a notice of right to sue is issued and a lawsuit is filed.
• The Second, Seventh, and Ninth Circuits have held that the EEOC retains investigatory authority even after these events, based on their interpretation of Title VII and EEOC regulations, particularly 29 C.F.R. § 1601.28(a)(3).
• In contrast, the Fifth Circuit has taken the position that the EEOC’s investigatory powers are limited once a lawsuit is filed, resulting in a circuit split that may ultimately require resolution by the Supreme Court of the United States.

An August 25, 2025, decision from the U.S. Court of Appeals for the Second Circuit has affirmed the EEOC’s authority to continue investigating an employer after issuing a right-to-sue notice and after the employee has filed a lawsuit. This decision contributes to an ongoing split among federal circuit courts regarding the scope of the EEOC’s investigatory powers under Title VII of the Civil Rights Act of 1964 and related statutes.

The EEOC’s Investigative Process

An employee or applicant who believes he or she has been the victim of workplace discrimination must first exhaust administrative remedies before filing a federal lawsuit—meaning that the individual must file a charge with the EEOC (except for claims brought under the Equal Pay Act). Once filed, the EEOC’s investigation takes place, which might include gathering information, conducting interviews, and making a determination. More often than not,...

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