explaining that one pur‐ pose of a Commissioner’s charge is “to initiate an investigation where an individual is unwilling to file the charge for fear of retaliation by the em‐ ployer” (internal citation omitted)
How later courts described this case
- explaining that one pur‐ pose of a Commissioner’s charge is “to initiate an investigation where an individual is unwilling to file the charge for fear of retaliation by the em‐ ployer” (internal citation omitted)
- rejecting claim of undue burden where company "made no showing that enforcement of the subpoena would threaten the normal operation of its business”
- “We note initially that the mere assertion by an employer that his employment practices are lawful does not deprive the EEOC of jurisdiction. No action would ever be brought against an employer if the jurisdiction of the EEOC depended upon the assertions of employers as to whether their own employment practices were lawful.”
- “The purpose of this subpoena is to determine whether probable cause exists. To require the EEOC to demonstrate probable cause before the subpoena issues would impose an unfair obligation on the agency”
Written by the judges who cited it.
The opinion
BAUER,
Circuit Judge, dissenting.
The underlying issue on this appeal is whether the EEOC charge against Staley sets forth sufficient facts to comply with the date, place, and circumstances requirements of section 706(b). Because I believe the charge in this case failed to meet the statutory requirements, I respectfully dissent.
Section 706(b) requires the EEOC to serve a notice of the charge upon the employer; this notice must include “the date, place and circumstances of the alleged unlawful employment practice.” 42 U.S.C. § 2000e-5(b). In addition to this statutory requirement, EEOC’s procedural regulations require that the charge contain a “statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.” 29 C.F.R. § 1601 .-12(a)(3) (1981). These requirements are intended to give the employer sufficient notice to challenge an overbroad subpoena, and to protect the employer from open-ended “fishing expeditions.” Shell Oil Co. v. United States EEOC, 676 F.2d 322 (8th Cir.1982), reh’g denied, 689 F.2d 757 , cert. granted, — U.S. —, 103 S.Ct. 1181 , 75 L.Ed.2d 429 (1983).
Moreover, the EEOC charge is intended to enable the parties to determine whether conciliation may be appropriate, and to aid the courts and the employer in determining what employment material is relevant and discoverable. See Shell Oil Co., supra. A charge wholly lacking any basis in fact cannot satisfy these goals. Accordingly, I read section 706(b) to require that the EEOC charge include some factual basis for the agency’s belief that an employer has engaged in unlawful employment practices.
The charge brought against Staley consisted of a series of conclusory statements alleging discrimination against women and blacks in virtually every aspect of employment. The charge does not detail any specific instances of discriminatory treatment of employees or applicants. Similarly, the charge fails to describe any of Staley’s allegedly discriminatory practices.
Since the charge against Staley failed to include any factual basis for the allegation that Staley had engaged in unlawful employment practices, I believe that the charge was invalid under section 706(b). An invalid charge, of course, cannot support the issuance of an administrative subpoena. For this reason, I respectfully dissent from the affirmance of the subpoena’s enforcement.