Petition — Equal Employment Opportunity Commission v. Burlington Northern, Inc.

No.

Iu the Supreme Court of thy United States

OCTOBER TERM, 1978

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

ET AL., PETITIONERS

U.

BURLINGTON NORTHERN, INC., ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

WADE H. MCCREE, JR.

Solicitor General

ABNER W. SIBAL =

General Counsel Driw S. Days, III

Assistant Attorney General

JOSEPH T. EDDINS rney Genera

Associate General Counsel WILLIAM C. BRYSON

Assistant to the

Solicitor General

Department of Justice

RAJ K. GUPTA Washington, D.C. 2053

Attorney

Equal Employment Opportunity Commission

Washington, D.C. 20506

BEATRICE ROSENBERG

Assistant General Counsel

a scarnesiiensinaeiodin’

ESSERE ee cn

Question presented ....... se ;

Statutes and regulations involved ....................

Statement ...

Reasons for granting the petition -.....................

Conclusion

CITATIONS

Cases:

Alexander v. Gardner-Denver Co., 415

Oa iid can centnseenenicene

American Pipe & Construction Co. v.

a eee

H. Kessler & Co. v. Equal Employment

Opportunity Commission, 472 F.2d

1147, cert. denied, 412 U.S. 939 ....

International Brotherhood of Teamsters

v. United States, 431 U.S. 324 -..0000....

Occidental Life Insurance Co. v. Equal

Employment Opportunity Commission,

Sn

Sears, Roebuck and Co. v. Equal Em-

ployment Opportunity Commission, 581

a SR

S| SS, ‘ Sentilles

II

Statutes and regulations: Page

Civil Rights Act of 1964, 42 U.S.C. 2000e

et seq.:

Section 706, 42 U.S.C. 2000e-5 .......... 4-5

Section 706(a), 42 U.S.C. 2000e-5

SI cals iii iu canidanbincislighiddaetacakeies 12

Section 706(b), 42 U.S.C. 2000e-

DT is tdislptdeitastennnsiniassindnsesdaind 2,4, 10,11, 12

Section 706(f) (1), 42 U.S.C. 2000e-

IIIT ‘listiiidiinicssdatacendtonmepiadeniciednaunese 5

Section 707, 42 U.S.C. 2000e-6 ........ 4-5

Section 709(e), 42 U.S.C. 2000e-8

SE Aibitattssetansehienidaiihaibasbatcetdiggslanicniaiosen passim

Bee SA I, I SID clbeccwrctictswensssunsncssnie 14

Equal Employment Opportunity Commis-

sion regulations, 29 C.F.R. 1601.22 ...... 3,8

Miscellaneous:

110 Cong. Rec. 12723 (1964) .....000000.... 10

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Ei AL., PETITIONERS

VU.

BURLINGTON NORTHERN, INC., ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

The Solicitor General, on behalf of the Equal Em-

ployment Opportunity Commission, petitions for a

writ of certiorari to review the judgment of the

United States Court of Appeals for the Seventh Cir-

cuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, in-

fra) is reported at 582 F.2d 1097. The order of the

district court (App. C, infra) is unreported.

(1)

2

JURISDICTION

The judgment of the court of appeals (App. B,

infra) was entered on August 15, 1978. On No-

vember 6, 1978, Mr. Justice Stevens extended the

time for filing a petition to and including December

13, 1978. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether Section 709(e) of the Civil Rights Act

of 1964, 42 U.S.C. 2000e-8(e), prohibits the Equal

Employment Opportunity Commission from disclos-

ing to a charging party information the Commission

has gathered in the course of its investigation re-

lating to the charging party’s claim.

STATUTES AND REGULATIONS INVOLVED

Section 706(b) of the Civil Rights Act of 1964, 42

U.S.C. 2000e-5(b), provides, in pertinent part:

* * * Charges shall be in writing under oath or

affirmation and shall contain such information

and be in such form as the Commission requires.

Charges shall not be made public by the Com-

mission. * * * If the Commission determines

after such investigation that there is reasonable

cause to believe that the charge is true, the Com-

mission shall endeavor to eliminate any such al-

leged unlawful employment practice by informal

methods of conference, conciliation, and persua-

sion. Nothing said or done during and as a part of

3

such informal endeavors may be made public by

the Commission, its officers or employees, or used

as evidence in a subsequent proceeding without

the written consent of the persons concerned.

Any person who makes public information in

violation of this subsection shall be fined not

more than $1,000 or imprisoned for not more

than one year, or both. * * *

Section 709(e) of the Act, 42 U.S.C. 2000e-8(e)

provides:

It shall be unlawful for any officer or em-

ployee of the Commission to make public in any

manner whatever any information obtained by

the Commission pursuant to its authority under

this section prior to the institution of any pro-

ceeding under this title involving such infor-

mation. Any officer or employee of the Com-

mission who shall make public in any manner

whatever any information in violation of this

subsection shall be guilty of a misdemeanor and

upon conviction thereof, shall be fined not more

than $1,000, or imprisoned not more than one

year.

Section 1601.22 of the Equal Employment Oppor-

tunity Commission regulations, 29 C.F.R. 1601.22,

provides:

Confidentiality.

Neither a charge, nor information obtained

pursuant to section 709(a) of Title VII, nor in-

formation obtained from records required to be

kept or reports required to be filed pursuant to

section 709(c) and (d) of Title VII, shall be made

4

matters of public information by the Commission

prior to the institution of any proceedings under

this Title involving such charge or information.

This provision does not apply to such earlier dis-

closures to charging parties, or their attorneys,

respondents or their attorneys, or witnesses where

disclosure is deemed necessary for securing appro-

priate relief. This provision also does not apply to

such earlier disclosures to representatives of inter-

ested Federal, State, and local authorities as may

be appropriate or necessary to the carrying out of

the Commission’s function under Title VII, nor

to the publication of data derived from such in-

formation in a form which does not reveal the

identity of charging parties, respondents, or per-

sons supplying the information.

STATEMENT

Following the filing of a Commissioner’s charge

in 1974,’ the Equal Employment Opportunity Com-

mission began investigating the employment prac-

tices of respondent Burlington Northern, Inc. The

investigation sought to explore the allegation that

Burlington had engaged in widespread employment

discrimination, in violation of Sections 706 and 707

‘A charge of employment discrimination may be filed with

the Commission by an individual claiming to be aggrieved

(the “charging party”) or by a member of the Commission.

42 U.S.C. 2000e-5(b). After furnishing a copy of the charge

to the employer, the Commission investigates the charge, and

if the Commission determines on the basis of its investigation

that there is reasonable cause to believe that the charge is

true, it seeks to resolve the charge informally through con-

ference, conciliation, and persuasion (ibid.).

5

of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5

and 2000e-6. In the course of the investigation, Bur-

lington provided information and documentary ma-

terials to the Commission (App. A, infra, 2a).

Two individuals, who had filed discrimination

charges against Burlington before the Commission-

er’s charge was filed, requested and obtained right-

to-sue letters from the Commission.’ They then filed

an action against Burlington on behalf of a nation-

wide class of Burlington’s black employees and ap-

plicants for employment.

Following the institution of that action, the two

individual plaintiffs served a subpoena on the Com-

mission seeking production of all the documents that

had been collected in the course of the Commission’s

investigation of Burlington. The Commission noti-

fied Burlington that it intended to comply with the

subpoena. Burlington then filed this action in the

United States District Court for the Northern Dis-

trict of Illinois seeking to bar the Commission from

producing the subpoenaed materials. Burlington ar-

gued that disclosing the materials in the Commis-

sioner’s charge investigative file would violate the

prohibition in Section 709(e) of the Civil Rights

Act against making public “any information ob-

tained by the Commission pursuant to its authority

* A charging party has the right to bring suit on his claim

180 days after the filing of his charge, if the Commission has

not brought suit or entered into a conciliation agreement to

which he is a party. Before filing suit, the charging party

obtains a right-to-sue letter from the Commission. 42 U.S.C.

2000e-5 (f) (1).

6

under this section prior to the institution of any

proceeding under this title involving such informa-

tion.” Because the two charging parties had insti-

tuted a Title VII action, Burlington conceded that

the Commission could lawfully release to each charg-

ing party materials relating to that party’s indi-

vidual charge. But to release to the two class rep-

resentatives the materials collected in the course of

the general investigation of Burlington’s employ-

ment practices, Burlington argued, would violate Sec-

tion 709(e) (App. A, infra, 2a-5a).

The district court refused to grant injunctive re-

lief (App. C, infra). It held that the disclosure of

information to private charging parties did not con-

stitute “public” disclosure within the meaning of Sec-

tion 709(e) and that the production of the mate-

rials in the Commissioner’s charge file, subject to the

restrictions on the use of those materials imposed

by the Commission’s regulations, would not violate

the statute.®

The court of appeals reversed. It rejected the

Commission’s position, embodied in its regulations,

that disclosure to charging parties is not disclosure

to the “public” within the meaning of Section 709

(e). The court held instead that “individual charging

* The court adopted as its findings of fact and conclusions

of law its statements at a hearing on Purlington’s motion for

a preliminary injunction. The court stated at the hearing

that “this is not * * * a disclosure to the public, it is a dis-

closure to a litigant who, indeed, as Congress has pointed out,

is a private Attorney General for the enfortement of civil

rights complaints” (C.A. App. 15).

7

parties are members of the public under § 709(e) to

whom investigatory materials, may not be disclosed

prior to the initiation of judicial proceedings” (App.

A, infra, 9a). The court recognized that Section 709

(e) permits the release of information after the institu-

tion of a suit under Title VII if that suit “involv[es]

such information.” Accordingly, it acknowledged that

the two individuals who had brought the Title VII class

action against Burlington could be given investigative

materials relevant to their individual claims. But the

court held that the full contents of the national Com-

missioner’s charge investigation could not be re-

vealed to them. At least until a class is certified, the

court held, only those materials directly related to

the individual claims of the two named plaintiffs

could be released (App. A, infra, 10a-12a).

REASONS FOR GRANTING THE PETITION

1, As the court of appeals acknowledged, the de-

cision in this case conflicts with that of the en banc

Fifth Circuit in H. Kessler & Co. v. Equal Employ-

ment Opportunity Commission, 472 F.2d 1147, cert.

denied, 412 U.S. 939 (1973). There the court held

that disclosure to a charging party of material in

the investigative file relating to the charge is not pub-

lic disclosure of the type forbidden by Section 709

(e). Although that case involved the disclosure of

materials relating only to an individual charge, the

court of appeals declined to distinguish Kessler on

that ground. Instead, the court premised its decision

8

on the ground that the prohibition of Section 709(e)

applies to charging parties to the same degree as to

all other members of the public, thus flatly disagree-

ing with the holding in Kessler.‘

It is important to the Commission that this con-

flict be resolved. Since the effective date of Title VII,

the Commission has taken the position, approved in

Kessler, that disclosure to the parties directly in-

volved in a charge’ does not constitute “public” dis-

closure within the meaning of Section 709(e) of the

Act. See 29 C.F.R. 1601.22. The uncertainty gen-

erated by the decision in this case has created doubt

*The Court of Appeals for the District of Columbia Cir-

cuit has also held that charging parties are members of the

“public” within the meaning of Section 709(e). Sears, Roe-

buck and Co. Vv. Equal Employment Opportunity Commis-

sion, 581 F.2d 941 (1978). The Sears court distinguished

Kessler on the ground that it involved a single charge by one

individual, not a national Commissioner’s charge. Jd. at 947.

The court of appeals in this case, however, declined to adopt

this distinction and flatly disagreed with the holding in

Kessler that charging parties are not members of the public

under Section 709(e) (App. A, infra, 9a).

°’The parties involved in a charge, in the Commission’s

view, include the charging party, the employer, witnesses,

and other governmental agencies. 29 C.F.R. 1601.22. The

Commission’s regulations authorize it to disclose to an em-

ployer information obtained from others during an investi-

gation when doing so would aid conciliation. Disclosure of

investigative materials to witnesses is permitted when dis-

closure would promote the purposes of the investigation.

There is no question that disclosure to other governmental

agencies is lawful, since governmental agencies are not the

“public” for purposes of Section 709(e). See Sears, Roebuck

and Co. v. Equal Employment Opportunity Cvurmission,

supra, 581 F.2d at 947.

9

whether Commission personnel can lawfully apply the

Commission’s routine disclosure policy. Particularly

in light of the fact that Section 709(e) is a crim-

inal statute, this uncertainty needs to be resolved.

Moreover, the court’s construction of Section 709

(e), if allowed to stand, may adversely affect the

Commission’s ability to perform its statutory func-

tions. Under the court’s interpretation of Section

709(e), the Commission would apparently be pro-

hibited, at least without consent,’ from disclosing

materials in the investigative file to either the charg-

ing party or the employer, even when disclosure

would facilitate conciliation. Moreover, if the Com-

mission cannot reveal material in its investigative

file prior to litigation, it might be prohibited from

disclosing in its reasonable cause determination the

facts that led it to find reasonable cause to believe

that the charge is true. In any event, the Commis-

sion must know what it can or cannot reveal in

carrying out its statutory duties of fact finding and

conciliation.

2. The Fifth Circuit in Kessler employed what we

believe to be the proper analysis of the “public dis-

closure” prohibition of Section 709(e). The court

there noted that the legislative history of this pro-

vision, although meager, nonetheless supports the

Commission’s interpretation. Senator Humphrey,

when introducing the nondisclosure provision that

® Section 709(e) does not specifically provide that materials

can be disclosed with consent, but we do not believe that dis-

closure with consent would be a violation of the statute.

10

was eventually enacted, explained that the ban on

public disciosure did not prohibit “such disclosure

as is necessary to the carrying out of the Commis-

sion’s duties under the statute.” 110 Cong. Rec.

12723 (1964). He added (ibid.):

Obviously, the proper conduct of an investiga-

tion would ordinarily require that the witnesses

be informed that a charge had been filed and

often that certain evidence had been received.

Such disclosure would be proper. The amend-

ment is not intended to hamper Commission in-

vestigations or proper cooperation with other

State and Federal agencies, but rather is aimed

at the making available to the general public of

unproven charges.

As the Kessler court pointed out, although the

term “make public” is not defined in the Act, it is

used in another section of the Act in a manner that

supports the Commission’s interpretation of the term.

That provision, Section 706(b), 42 U.S.C, 2000e-5

(b), states that the Commission shall furnish the em-

ployer with a copy of the charge, but such “[c¢]harges

shall not be made public.” The same section further

provides that the Commission shall undertake to

conciliate charges but that nothing said or done as a

part of the conciliation proceedings “may be made pub-

lic by the Commission * * * without the written con-

sent of the persons concerned.” Since the employer

is thus to be informed about the charge, and since

the employer and the aggrieved person must be par-

ties to any conciliation, both the charge and matters

11

arising in the course of conciliation proceedings will

ordinarily be known or made known to both the

charging party and the employer. Accordingly, the

use of the term “public” in Section 706(b) plainly

contemplates disclosure to persons other than the

charging party and the employer. Absent some sug-

gestion that the term was meant to carry a dif-

ferent meaning when used in Section 709(e), the

term “make public” in that provision similarly

should not be read to encompass the employer and

the charging party.

The suggestion of the court below that disclosure

of materials in the investigative file would stir up

litigation also appears erroneous. At least as applied

to individual charging parties, the court’s construc-

tion of Section 709(e) could well have the opposite

effect. If individual charging parties could not obtain

materials in the Commission’s files until after they

have brought suit, they might well be encouraged to

use litigiation as an investigative tool and to post-

pone serious settlement negotiations until after suit

has been filed and the Commission’s investigative ma-

terials have been obtained.

Contrary to the suggestion of the court of ap-

peals, the 1972 amendments to the Civil Rights Act

did not in any way undermine the rationale of

the Kessler decision. The language of Section 709(e)

was not changed, and there is therefore no reason

to suppose that Congress intended to alter the scope

of its ban on publicizing investigative materials. See

International Brotherhood of Teamsters v. United

12

States, 431 U.S. 324, 354 n.89 (1977).’ The court’s

suggestion that Congress in 1972 intended private

employment discrimination actions to play a less

prominent role in civil rights enforcement is errone-

ous. Congress in 1972 was careful to preserve the

private right of action. See Occidental Life Insurance

Co. v. Equal Employment Opportunity Commission,

432 U.S. 355, 361-866 (1977). This Court noted in

Alexander v. Gardner-Denver Co., 415 U.S. 36, 45

(1974), that even after the 1972 amendments gave

enforcement authority to the Commission, “the pri-

vate right of action remains an essential means of

obtaining judicial enforcement of Title VII.” Noth-

ing in the 1972 amendments can be regarded as im-

plicitly changing Congress’ original intention, long

recognized in Commission practice, that the statutory

prohibitions against publicizing information were not

to apply to disclosures to the parties directly involved

in the charge.

8. The holding of the court of appeals that the

charging parties are members of the “public” with-

in the meaning of Section 709(e) was not sufficient

to dispose of the case. The prohibition against dis-

closing information obtained in Commission inves-

‘With respect to conciliation, Congress changed the lan-

guage of former Section 706(a), which permitted disclosure

upon the “consent of the parties,” to the present language of

Section 706(b), which requires the “consent of the persons

concerned.” There is no explanation in the legislative history

for this change and no suggestion that a modification in sub-

stance was intended.

13

tigations applies only “prior to the institution of any

proceeding under [Title VII] involving such infor-

mation.” Because the two individual plaintiffs had

already filed suit at the time they sought access to

the investigative file information, the prohibition of

Section 709(e) did not apply to them. But the court

nonetheless prohibited release of the materials in

the Commissioner’s charge file on the ground that,

“(a]t least prior to certification of a class, the investi-

gative information ‘involv[ed]’ in a private Title VII

action, within the meaning of Section 709(e), is only

that directly relevant to the individual plaintiff's

claims.” Because the nationwide investigative file

contained a great deal of material that was not di-

rectly concerned with the individual charges filed by

the two class representatives, the court held that the

only information that could be disclosed to the plain-

tiffs would be the information in that file that either

was or would normally have been gathered in the in-

vestigations of the two individual charges.

This was error. The nationwide class action filed

by the two charging parties was plainly a proceeding

“involving” the information in the nationwide investi-

gative file. The fact that a class had not yet been

certified does not alter the nature of the action. As

this Court has held in different contexts, during the

period prior to the certification ruling, a class action

proceeds as if the alleged class were properly cer-

tified. See American Pipe & Construction Co. v. Utah,

414 U.S. 538, 551-552 (1974) (“Rule 23 is not de-

signed to afford class action representation only to

14

those who are active participants in or even aware

of the proceedings in the suit prior to the order that

the suit shall or shall not proceed as a class action’’) ;

United Airlines, Inc. v. McDonald, 432 U.S. 385,

392-393 (1977). As the Advisory Committee Notes

state, the decision not to certify a class “means that

the action should be stripped of its character as a

class action.” 28 U.S.C. App. p. 7767. Thus, prior

to the time of the certification ruling, the class action

brought by the two charging parties should be re-

garded as a class action, not a suit by two indi-

viduals. Because the nationwide class action plainly

“involv[es]” the information in the Commissioner’s

charge file, the court erred in holding that Com-

mission officials would violate Section 709(e) if they

responded to the class representatives’ subpoena.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ABNER W. SIBAL WADE H. MCCREE, JR.

General Counsel Solicitor General

JOSEPH T. EDDINS DREw S. Days, III

Associate General Counsel Assistant Attorney General

BEATRICE ROSENBERG WILLIAM C. BRYSON

Assistant General Counsel Assistant to the

Solicitor General

RAJ K. GUPTA

Attorney

Equal Employment Opportunity Commission

DECEMBER 1978

la

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 78-1486

BURLINGTON NORTHERN, INC., PLAINTIFF-APPELLANT,

and

BROTHERHOOD OF RAILWAY, AIRLINE & STEAMSHIP

CLERKS, ETC., INTERVENING PLAINTIFF-APPELLANT,

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION;

ETHEL BENT WALSH, Commissioner, Equal Em-

ployment Opportunity Commission; BRUCE ELFVIN,

Senior Trial Counsel, Equal Employment Opportu-

nity Commission; and ODAS NICHOLASON, Assistant

General Counsel, Equal Employment Opportunity

Commission, DEFENDANTS-APPELLEES,

and

WILLIAM E. McBRIDE, WILLIAM H. BUTLER,

INTERVENING DEFENDANTS-APPELLEES.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 78 C 1257—JOHN PoWERS CROWLEY, Judge

Argued May 30, 1978—Decided August 15, 1978

2a

Before PELL and BAUER, Circuit Judges, and HARP-

ER, Senior District Judge.*

PELL, Circuit Judge. In response to a wide-ranging

charge by Commissioner Ethel Bent Walsh, the Equal

Employment Opportunity Commission began a na-

tional investigation into possible discrimination in

employment by Burlington Northern, Inc. During the

course of the patulous investigation, Burlington has

voluntarily cooperated with the Commission by an-

swering numerous interrogatories and providing sub-

stantial quantities of documents and records.’ The

national investigation has been consolidated with the

Commission’s processing of approximately 60 indi-

vidual discrimination charges against Burlington.

Burlington has also voluntarily provided materials

dealing specifically with at least some of these charges.

After the Commission’s investigation began, Wil-

liam McBride and William Butler, two black Burling-

ton employees, requested and obtained right-to-sue

letters from the Commission (see 42 U.S.C. § 2000e-

* Senior Judge Roy W. Harper of the Eastern and Western

Districts of Missouri sat with the panel by designation and

heard oral argument. He thereafter disqualified himself from

further consideration of the case, and did not participate in

the preparation or issuance of this opinion.

' Burlington says that among the information disclosed to

the Commission was a substantial amount of confidential and

sensitive business information. The Commission does not deny

this. The information is not part of the record in the case, so

we cannot determine the truth of Burlington’s assertion, but

our disposition of the issue before us does not turn on its

truth or falsity.

3a

5(f)) and filed a private action on behalf of a nation-

wide class of black employees of and applicants for

employment with Burlington. A former employee,

Roy Hill, has filed an action on behalf of a class lo-

cated in the Northern District of Illinois,* and DuBois

Gilliam filed a complaint originally purporting to rep-

resent a class of black Burlington employees in Ne-

braska and Iowa, but which he now is seeking to

amend to expand the class to national scope.*

A number of individual charging parties have re-

quested access to the Commission’s national investi-

gatory file on Burlington. Given the Commission’s

policy of cooperating with private litigants by pro-

viding them relevant information (broadly defined)

subject to a promise not to make the information

public, see EEOC Compliance Manual §§ 83.7(c),

83.3 (b), 83.4, 83.5, it is assumed that the Commission

will honor these requests if allowed to do so. This

case arises from a concrete instance, however, in

which no assumptions as to the future are necessary.

McBride and Butler have subpoenaed the Commission

to produce all documents in the Burlington investiga-

tion file, and the Commission has advised Burlington

that it will comply with the subpoena. Burlington

filed this action to enjoin release of the information

2 McBride v. Burlington Northern, Inc., No. 78 C 269 (N.D.

Til.).

* Hill v. Burlington Northern, Inc., No. 78 C 308 (N.D.IIl.).

*Gilliam v. Burlington Northern, Inc., No. Civ. 77-0-423

(D.Neb.).

4a

in the Commission’s investigation file. The district

court denied all relief, and Burlington appealed.

The issue before us may be simply put: to what

degree may the Commission release information gath-

ered in a national investigation of an employer’s

practices to an individual prosecuting a private class

action attacking those practices? Section 709 of

Title VII, 42 U.S.C. § 2000e-8, gives substantial

investigatory powers to the Commission, and also

provides the limit to its power to disclose the infor-

mation gathered in the investigation. Subsection (e)

states:

It shall be unlawful for any officer or employee

of the Commission to make public in any manner

whatever any information obtained by the Com-

mission pursuant to its authority under this sec-

tion prior to the institution of any proceeding

under this subchapter involving such informa-

tion. Any officer or employee of the Commission

who shall make public in any manner whatever

any information in violation of this subsection

shall be guilty of a misdemeanor and upon con-

viction thereof, shall be fined not more than

$1,000, or imprisoned not more than one year.

The Commission’s position, expressed in its Compli-

ance Manual (see sections cited above), in 29 C.F.R.

§ 1610.17(d), and in its brief and argument here, is

that individual charging parties are not members of

the “public” within the meaning of § 709(e), and

that investigative materials may thus be disclosed to

them and their attorneys either before or after liti-

gation under Title VII is begun. Burlington argues

5a

that charging parties are members of the public to

whom nothing may be disclosed before litigation is

begun, and that even after a private action is filed,

notwithstanding that the charging parties purport to

represent a class, the action itself only “involv[es]

such information” as is directly relevant to discrimi-

nation against the individual charging parties. It in-

sists, therefore, that nothing more may be disclosed.

Burlington also argues that class actions, unlike pri-

vate individual actions, should not be permitted while

pattern and practice proceedings continue to pend

before the Commission.

This case, of course, directly involves only the Com-

mission’s plans to disclose investigative material to

private litigants who have filed actions under Title

VII. If the Commission is correct, however, that

charging parties are not members of the public, it

would be free to disclose the material to them without

regard to whether or not litigation had begun. Ac-

cordingly, we address this argument first, and reject

it.

In our opinion the statutory scheme of enforcing

Title VII is entirely inconsistent with the Commis-

sion’s interpretation of § 709(e). Under the Civil

Rights Act of 1964, the Commission had power only

to investigate and attempt to conciliate employment

discrimination charges, 42 U.S.C. § 2000e-5(a)

(1970), and coercive enforcement could only be

achieved by a private suit initiated by a charging

party, 42 U.S.C. § 2000e-5(e) (1970). By 1972, Con-

gress had become dissatisfied with the effectiveness of

this enforcement scheme. See H.R. Rep. No. 92-238

6a

(1971), reprinted in 2 U.S. Code Cong’] & Admin.

News 2137, 2189-41, 2144 (1972). The Equal Em-

ployment Opportunity Act of 1972 amended Title VII

of the Civil Rights Act to establish “an integrated,

multistep enforcement procedure culminating in the

EEOC’s authority to bring a civil action in a federal

court.” Occidental Life Insurance Company of Cali-

fornia v. Equal Employment Opportunity Commis-

sion, 482 U.S. 355, 359 (1977).

The right of an individual charging party to file a

private action was preserved to allow escape from the

“administrative quagmire” which could develop if a

case could not promptly be processed by the Commis-

sion. See H.R. Rep. No. 92-238, supra, 2 U.S. Code

Cong’! & Admin. News at 2147-48; Occidental Life,

supra at 364-66. But there can be no doubt that the

enforcement scheme enacted with the 1972 amend-

ments lodged the primary responsibility for insuring

equal employment opportunity with the Commission."

Because of the Commission’s accumulated experience

and expertise and its ability, through conciliation and

pattern and practice litigation, to achieve results that

will benefit an employer’s entire workforce, “[t]he

Commission has the basic responsibility to achieve the

objectives of Title VII.” H.R. Rep. No. 92-238, supra,

2 U.S. Code Cong’! & Admin. News at 2149. A sec-

tion-by-section analysis of the amendments that was

presented to the Senate before its final vote on the

° Indeed, even prior to the 1972 Act, “[c]ooperation and

voluntary compliance [through the Commission’s offices] were

selected as the preferred means for achieving this goal.” Alew-

ander Vv. Gardner-Denver Co., 415 U.S. 86, 44 (1974).

a a a ==

Ta

amending bill, 118 Cong. Rec. 4942 (1972), and that

was put before both the Senate, 118 Cong. Rec. 7165,

7168 (1972), and the House of Representatives, 118

Cong. Ree. 7568, 7565 (1972), in conjunction with

the Conference Report on the amendments, which

analysis the Supreme Court has said “provides the

final and conclusive confirmation of the meaning” of

the private remedy provisions of the 1972 Act, Ocei-

dental Life, swpra at 365, makes the primacy of the

Commission’s enforcement powers quite clear: “It is

hoped that recourse to the private lawsuit will be the

exception and not the rule, and that the vast majority

of complaints will be handled through the offices of

the EEOC.” See Sears, Roebuck and Company v.

Equal Employment Opportunity Commission, Nos.

77-1822, 77-1995, 77-1996 (D.C. Cir. June 9, 1978),

slip op. at 4, 11,

We think it plain, and the Commission does not

disagree, that the effect, and indeed the purpose, of

disclosing investigative material to charging parties

as if they were not members of the public would

be to encourage the filing of private lawsuits, It is

also obvious that this effect will necessarily undercut

the preferred enforcement scheme of comprehensive

negotiation and settlement. Sears Roebuck, supra at

11-12; and see Johnson y, Railway Express Agency,

Inc., 421 U.S, 454, 461 (1975), by diffusing the en-

ergies of the employer and the EEOC and by inject-

ing possibly unnecessary adversariness into the proc-

ess of dealing with employment practices. Moreover,

the disclosure policy, which the Commission argues is

8a

appropriate, will almost certainly interfere with its

ability to obtain voluntary cooperation with its in-

vestigative efforts. If employers know that what-

ever they provide to the Commission will be turned

over to litigious charging parties, they will have an

incentive to force the Commission to go to court under

Section 709(¢) of the Act to obtain the information

sought, if only to obtain an enforceable court order

that the information thus disclosed will not be dis-

closed further. Sears, Roebuck, supra at 13-14." We

find absolutely no reason to believe that the Congress

intended, in enacting § 709(e), to undereut and hin-

der the primary means of enforcing equal employment

opportunity merely to facilitate the filing of private

litigation, which as we have said, was contemplated as

a back-up remedy.’ Accordingly, we hold, as did the

® As the court in Sears, Roebuck points out, the Commission

has no apparent means of enforcing the nondisclosure agree-

ment which it requires those to whom it discloses information

to sign, 7d. at 18,

* The Commission argues that in Johnson, supra, the Court,

while recognizing the possible interference that a civil action

under 42 U.S.C, § 1981 might create with the negotiation and

settlement provisions of Title VII, expressly sanctioned such

an effect as consistent with Congress’ plain intentions, That,

of course, is true, but the dispositive point is that the Court

found a plain intention that Title VII only supplement and not

supplant § 1981 remedies. There is absolutely nothing to

suggest that Congress intended the secondary remedy of Title

VII itself to wreak havoc on that title’s intended primary

remedy. Indeed, as we have indicated, the private action in

Title VII was intended precisely as an escape from the

primary remedy in cases where that remedy was not prompt-

ly effective. In apparent recognition of Congress’ manifest

9a

District of Columbia Circuit in Sears, Roebuck, that

individual charging parties are members of the pub-

lic under § 709(e) to whom investigatory materials

may not be disclosed prior to the institution of judi-

cial proceedings.

We recognize that in H. Kessler & Company v.

EBOC, 472 F.2d 1147 (5th Cir, 1978) (en bane),

cert, denied, 412 U.S. 989, the Fifth Circuit expressed

the view that disclosure to an individual charging

party of the contents of his individual investigation

file was not a “publie” disclosure, Kessler is subject

to being distinguished on the basis of the limited dis-

closure involved there," although it would seem, con-

ceptually, that the definition of “public” ought to turn

on who is to receive the information rather than how

much may appropriately be given the recipient. We

are constrained respectfully to disagree with Kessler,

as did Sears, Roebuck, because Kessler gave no con-

sideration to the weighty problems of undercutting

the Commission’s primary role in Title VII enforce-

ment, and we think the decision’s underlying concerns

about the difficulties of obtaining counsel for a pri-

purpose, the Commission has promulgated regulations in-

dicating that the Commission’s typical response when a

private action is filed is to cease pursuit of administrative

remedy for the private litigant’s claim, 29 C.F.R, § 1601.28

(a) (8). When this is done, naturally, there is nothing left

of the primary remedy which the secondary private remedy

could undercut,

* Such a distinction would not, of course, advance the Com-

mission’s position here, where much broader disclosure is

planned.

10a

vate action have been substantially alleviated by the

1972 Act. See 42 U.S.C. $§ 2000e-5(f) (1), 2000e-

5(k); Sears, Roebuck, supra at 15-16.

Once a Title VII proceeding “involving [investiga-

tive] information” has been instituted, § 709(e)’s

prohibition against making the information “public in

any manner whatever” ceases. McBride and Butler

have, of course, filed such a suit, and Burlington

agrees that they are entitled to the investigative ma-

terial to the degree it is directly relevant to their in-

dividual charges of discrimination.’ The remaining

question is whether because they filed a class action

suit, they are entitled to information not directly

relevant to their individual charges but which is rele-

vant to the allegations of discrimination against the

broader class.

Burlington’s first argument here is that class ac-

tions themselves should not be permitted while the

Commission pursues pattern and practice remedies.

We agree with Burlington that the maintenance of

such actions could hinder effective negotiation and

settlement in the Commission, but we disagree with

* The Commission advises us that there no longer are uni-

tary files on the investigation of McBride’s or Butler’s indi-

vidual charges, the materials having been consolidated with

the national investigation file. We agree with the parties that

no one’s rights should be determined on the basis of the label

attached to an investigation file. To the degree material in the

national investigation file either was or would normally have

been gathered in the individual investigations of McBride’s or

Butler’s charges, disclosure would be appropriate. Mosley v.

General Motors Corp., 10 F.E.P. Cases 1442, 1445 (E.D. Mo.

1975).

lla

its conclusion. In contrast to § 709(e), which plainly

evinces Congressional intent to limit the use of in-

formation gathered in Commission investigations,

there is nothing in the statute to suggest that a pri-

vate party with a right to file an action may not

attempt to do so on behalf of a class. Were we in-

clined to imply such a limit, the legislative history

would cure us of the inclination. The section-by-

section analysis of the 1972 amendments to Title VII,

referred to above, clearly states that in establishing

the enforcement provisions of the 1972 Act, “it is

not intended that any of the provisions shall affect the

present use of class action lawsuits under Title VII

in conjunction with Rule 23 of the Federal Rules of

Civil Procedure.” 118 Cong. Rec. 7168, 7565 (1972).

The analysis points out that a “provision limiting

class actions was contained in the House bill and

specifically rejected by the Conference Committee.”’

Id. We need not consider the extent to which the

pendency of EEOC pattern and practice proceedings

might influence a district judge’s discretion in decid-

ing whether to certify a class in any given action,

see, e.g., Franklin v. General Electric Co., 15 F.E.P.

Cases 1084 (W.D. Va. 1977), for that question is not

before us. It is enough to say that Congress has left

the class action device open in Title VII cases,

But that is not the same thing as saying that the

Commission ought to undercut the effective perform-

ance of its important responsibilities by providing

self-styled class representatives with the mass of

free discovery that could be expected to be found in

12a

the files of a national investigation by the Commis-

sion. At least prior to certification of a class, the

investigative information “involv[ed]” in a private

Title VII action, within the meaning of § 709(e), is

only that directly relevant to the individual plaintiff’s

claims. The Commission may disclose no more than

that to the private litigant.” Any broader construc-

tion of the Commission’s power to disclose its in-

vestigation’s fruits would create the very real risk

we have discussed above, that the Commission in its

zeal to aid those engaged in the secondary enforce-

ment of Title VII will emasculate its ability to pro-

ceed effectively with what Congress in no uncertain

terms intended to be the primary means of insuring

equal employment opportunity.

For the reasons stated herein, the judgment of the

district court is reversed, and the case is remanded

for further proceedings consistent herewith. Pending

disposition by the district court on remand, this

court’s unpublished order of May 9, 1978, that the

Commission make no disclosures of the pertinent in-

We note, in this regard, that the language of § 709(e)

was contained in the Civil Rights Act of 1964, pursuant to

the terms of which the Commission had no jurisdiction to

pursue pattern and practice remedies. The investigative files

compiled prior to the 1972 amendments, then, would not be

expected to contain any more than information relevant to

individual charges. This confirms our interpretation that the

cessation of the prohibition against disclosure when a pro-

ceeding “involving such information” was initiated was never

intended as authority to disclose information not relevant to

the charges brought by the individual(s) initiating the pro-

ceeding.

18a

formation will remain in effect. Circuit Rule 18 will

not apply on remand.

REVERSED AND REMANDED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

l4a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

August 15, 1978

Before |

HON. WILBUR F. PELL, JR., Circuit Judge

HON. WILLIAM J. BAUER, Circuit Judge

Hon. Roy W. HARPER, Senior District Judge*

No. 78-1486

BURLINGTON NORTHERN, INC., PLAINTIFF-APPELLANT,

BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP

CLERKS, FREIGHT HANDLERS AND STATION EMPLOYEES,

INTERVENING PLAINTIFFS-APPELLANTS,

vs.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

ET AL., DEFENDANTS-APPELLEES,

WILLIAM E. MCBRIDE, WILLIAM H. BUTLER,

and DUBoIs GILLIAM,

INTERVENING DEFENDANTS-APPELLEES.

* Senior Judge Roy W. Harper of the Eastern and Western

Districts of Missouri sat with the panel by designation and

heard oral argument. He thereafter disqualified himself from

further consideration of the case, and did not participate in

the preparation or issuance of this opinion.

a ee ROL C TN i Da ete ee

15a

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 78-C-1257 JOHN POWERS CROWLEY, Judge

This cause came on to be heard on the transcript

of the record from the United States District Court

for the Northern District of Illinois, Eastern Divi-

sion, and was argued by counsel.

On consideration whereof, it is ordered and ad-

judged by this court that the judgment of the said

District Court in this cause appealed from be, and

the same is hereby, REVERSED, with costs, and the

case is REMANDED, in accordance with the opinion

of this court filed this date.

l6a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 78 C 1257

BURLINGTON NORTHERN, INC., PLAINTIFF,

vs.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

ET AL., DEFENDANTS.

ORDER

This cause coming on to be heard on plaintiff’s

motion for preliminary and permanent injunctive re-

lief against the disclosure of certain investigative

files of the Equal Employment Opportunity Commis-

sion, and the Court having considered affidavits in

support of said motion and in opposition thereto, and

having heard oral argument, and the Court having

adopted the affidavits of Bruce B. Elfvin, Senior

Trial Attorney, Equal Employment Opportunity Com-

mission, and the Court’s findings of fact and conclu-

sions of law, as stated at the hearing on the tempo-

rary restraining order held on April 7, 1978, and at

the hearing on April 10, 1978, it is

17a

1. ORDERED that said motion be and hereby is

denied; and that judgment be entered in favor of

defendant, Equal Employment Opportunity Commis-

sion and against plaintiff, Burlington Northern Inc. ;

2. ORDERED that the defendant Equal Employ-

ment Opportunity Commission shall stay until May

10, 1978, disclosure of the factual data contained in

the investigatory case file on charge +TMK5C-0274

to counsel for plaintiffs in McBride, et al. v. Burling-

ton Northern, Inc., C.A. #78 C 269, U.S. District

Court for the Northern District of Illinois, Eastern

Division; provided however, that this data shall not

be further disclosed by counsel for McBride, et alia,

except in the course of that pending Title VII liti-

gation.

3. ORDERED that plaintiffs in McBride, et al. v.

Burlington Northern Inc., supra, are hereby allowed

to intervene in the instant action as parties defendant.

/s/ John Powers Crowley

JOHN POWERS CROWLEY

United States District Judge

DateD: April 10, 1978.

ov. &. GOVERNMENT PRINTING OFrice; 1978 279434 228