Many employment attorneys have been monitoring the EEOC's efforts to obtain private information about employees at the University of Pennsylvania based on the individuals' affiliation with Jewish groups and programs. Penn resisted the subpoena on privacy and constitutionality grounds. The EEOC sued to enforce the subpoena and prevailed in the district court. The university appealed the decision but, rather than continue to pursue the case, the EEOC has suddenly withdrawn its subpoena.  

Some experts have opined that this is a strategic move on the EEOC's part. The agency may be willing to give up its quest for information regarding employees at Penn with Jewish affiliations to avoid the risk that the district court decision will be overturned. The federal district court's opinion contained language about the “low bar” the EEOC is required to meet in order to obtain information from employers, and the agency may want to cite that decision in connection with future requests for information. This suggestion is further supported by the fact that, in exchange for the EEOC dropping the subpoena, Penn agreed not to seek to vacate the district court opinion.

Employers may see future references to the Penn case if they try to push back on the EEOC's use of the subpoena power.