Petition — EEOC v. Associated Dry Goods Corp.

Supreme Court brief1981

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79-1068

No. 79-

In the Supreme Court of the United States

OCTOBER TERM, 1979

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

' PETITIONER

ASSOCIATED Dry GOODS CORPORATION

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

WADE H. MCCREE, JR.

Solicitor General

DREW S. Days, III

Assistant Attorney General

WILLIAM ALSUP

Assistant to the Solicitor General

LEROY D. CLARK Department of Justice

General Counsel Washington, D.C. 20530

JOSEPH T. EDDINS

Associate General Counsel

BEATRICE ROSENBERG

Assistant General Counsel

VELLA M. FINK

Attorney

Equal Employment Opportunity Commission

Washington, D.C. 20506

INDEX

Page

Opinions below .................. WORT noe? 54. 1

SRE ae NT! 5.05 ON... 2

Question presented ooo eeecee eee 2

Statutes and regulations involved ............... 2

SONI a incnssnssarievcn istninndsadesbiiaocdailbtseeassaneuin 4

Reasons for granting the petition ................... 9

CAI i sscimnssiansacrnensvanbnnsnnitasiudbemaadansaeadene 16

POE Be ot ae la

PN Ba ee ee 14a

REE ol eee 15a

pe | Se eR oN LL tc. 16a

IR 8B sc ee eee 33a

CITATIONS

Cases:

Alexander v. Gardner-Denver Co., 415

ile BD ccc 13

Burlington Northern, Inc. v. Equal Em-

ployment Opportunity Commission, 582

F.2d 1097, cert. denied, 440 U.S. 930.. 8, 10,

12, 13

H. Kessler & Co. v. Equal Employment

Opportunity Commission, 472 F.2d

1147, aff’g in part and rev’g in part 53

F.R.D. 330, cert. denied, 412 U.S. 939.. 89

10, 11

International Brotherhood of Teamsters

v. United States, 481 U.S. 324 13

Cases—Continued

Occidental Life Insurance Co. v. Equal

Employment Opportunity Commission,

I oa seca Law nas kmaremteecanied sane

Sears, Roebuck & Co. v. Equal Employ-

ment Opportunity Commission, 581

ea cetetaditses<nnsistonpioneecncidanse 8, 10,

Statutes and regulations:

Civil Rights Act of 1964, Pub. L. No. 88-

352, 78 Stat. 253, Title VII, 42 U.S.C.

2000e et seq.:

Section 708, 42 U.S.C. 2000e-2 ..........

Section 705, 42 U.S.C. 2000e-4 ..........

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

Section 706(a), 42 U.S.C. (1970 ed.)

pinch nee puisenicenein

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

eee 2,5, 8, 9, 11, 12,

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

Cs a ase disennnonwunceviguessasiuess

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

Ea ae sasnstsonsniioistendnnenisnenes

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

Senn 2, 3, 5, 8, 9, 11, 12, 13,

Equal Employment Opportunity Commis-

sion regulations:

REM BURIED ssncdieninincnvenseensncasaness

aS 8 vt) onan

Page

12,13

on >

13, 16

15, 16

III

Miscellaneous: Page

Comment, The Meaning of “Public” in

Section 709(e) of the 1964 Civil Rights

Act and Access to Information Gath-

ered by ine EEOC, 67 Ky. L. J. 480

CRAY, Sinica ccceicceettcdersscoshcawans 13

110 Cong. Rec. 12723 (1964) .... 11

EEOC, Report on Results in Model Offices

Testing New Charge Processing Sys-

tems (Sept. 1977-1978) . siete 14

Equal Employment Opportunity Commis-

sion, Compliance Manual § 83 .............. 4, 38a

NI ik ccna Rec Ae Nee eee 6

EF RBA ee MERE oe AL OS 6

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

PETITIONER

ASSOCIATED DRY GOODS CORPORATION

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH 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 Fourth Cir-

cuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-13a) is not yet officially reported. The opinion of

the district court (App. D, infra, 16a-32a) is re-

ported at 454 F. Supp. 388.

(1)

JURISDICTION

The judgments of the court of appeals (Apps. B

and C, infra, 14a-15a) were entered on October 10,

1979. The jurisdiction of this Court is invoked under

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

QUESTION PRESENTED

Whether Sections 706(b) and 709(e) of Title VII

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

(b), and 2000e-8(e), prohibit the Equal Employment

Opportunity Commission, prior to the institution of a

suit, from disclosing information obtained during its

investigation of a charge to the parties immediately

involved in the charge.

STATUTES AND REGULATIONS INVOLVED

Section 706(b) of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 2000e-5(b), provides in perti-

nent part:

Charges shall be in writing under oath or af-

firmation 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 af-

ter 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 such informal endeavors may be made public

by the Commission, its officers or employees, or

used as evidence in a subsequent proceeding with-

out 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 Title VII, 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 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.

Section 1601.22 of the Equal Employment Oppor-

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

provides:

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 matters of public information by the Com-

mission prior to the institution of any proceed-

ings under this Title involving such charge or

information. This provision does not apply to

such earlier disclosures to charging parties, or

their attorneys, respondents or their attorneys,

or witnesses where disclosure is deemed neces-

sary for securing appropriate relief. This pro-

vision also does not apply to such earlier dis-

closures to representatives of interested Fed-

eral, State, and local authorities as may be ap-

propriate 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.

Section 1610.17(d) of the Commission’s regula-

tions, 29 C.F.R. 1610.17(d), provides:

Special disclosure rules apply to the case files

for charging parties, aggrieved persons on whose

behalf a charge has been filed, and entities

against whom charges have been filed. The

special disclosure rules are available in the public

reading areas of the Commission. Under sections

706 and 709, case files involved in the adminis-

trative process of the Commission are not avail-

able to the public.

Disclosure provisions of the EEOC Compliance

Manual are set forth in Appendix E, infra, 33a-46a.

STATEMENT

1. Title VII of the Civil Rights Act of 1964, Put

L. No. 88-352, 78 Stat. 255, prohibits employment dis-

crimination based on an individual’s race, color, re-

ligion, sex or national origin. 42 U.S.C. 2000e-2. The

Act created the Equal Employment Opportunity

Commission and empowered it to prevent unlawful

employment practices. 42 U.S.C. 2000e-4 and 2000e-

5. An aggrieved person may file with the Commis-

sion a charge of employment discrimination, which

the Commission must investigate and which, under

Section 706(b), may not be “made public.” 42 U.S.C.

2000e-5(b). If after such investigation the Com-

mission determines that there is reasonable cause

to believe the charge is true, it must endeavor to elimi-

nate the unlawful practice through “informal methods

of conference, conciliation, and persuasion.” Ibid.

“Nothing said or done during and as a part of such

informal endeavors,” however, “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.” bid.

In connection with its investigation of a charge,

the Commission is entitled under Section 709(a) to

inspect and copy any evidence of any person being

investigated or proceeded against that relates to the

alleged employment practice. 42 U.S.C. 2000e-8(a).

Employers must maintain records prescribed by the

Commission relevant to the determinations of

whether unlawful employment practices have been or

are being committed. 42 U.S.C. 2000e-8(c). Section

709(e) prohibits “the Commission [from making]

public in any manner whatever any information ob-

tained by the Commission pursuant to its authority

under this section prior to the institution of any

[civil action] involving such information.” 42 U.S.C.

2000e-8 (e).

The Commission’s regulations provide that charges

and investigative information shall not be made mat-

ters of public information by the Commission prior

to any civil enforcement action involving such

charge or information. 29 C.F.R. 1601.22. “This pro-

vision,” however, “does not apply to such earlier dis-

closures to charging parties, or their attorneys, re-

spondents or their attorneys, or witnesses where dis-

closure is deemed necessary for securing appropriate

relief.” Ibid. In addition, after dismissal of a charge

or after the expiration of the 180-day period for

investigation and conciliation of charges, the Com-

mission permits access to the investigative file by

complainants and their attorneys in connection with

pending or “contemplated litigation” (App. 5, infra,

§ 83.3(a)).' Persons to whom disclosure is made

must sign an EEOC form agreement not to disclose

the information obtained from the Commission (7d.

at § 83.4). This petition presents the question of the

validity of these disclosure provisions.

2. From 1971 through 1973 several charges of em-

ployment discrimination by individual employees

and former employees of Joseph Horne Company

(“Horne’s”), a division of Associated Dry Goods

Corporation, were filed with the Commission (App.

D, infra, 17a). Pursuant to Section 709, the Com-

mission requested Horne’s to disclose employment in-

formation relating to the charges (ibid.). Horne’s

1 Access may also be permitted prior to the expiration of

the 180 days upon a showing of “compelling need for access.”

Ibid.

refused to furnish the materials unless the Commis-

sion provided written assurance that the informa-

tion contained in the records would not be disclosed

to the charging parties, their counsel, or persons

interviewed during the Commission’s investigation

(tbid.). The Commission refused, explaining that, al-

though it does not disclose all information received

frum an employer, some disclosure to the charging

party is necessary to analyze or clarify data and

that parties who contemplate filing suit and their

counsel are allowed limited access to the Commis-

sion’s investigative files. Such persons must agree

not to make the information public (ibid.). 29 C.F.R.

1601.22.?

The Commission subsequently issued a subpoena

duces tecum to obtain the requested information

(App. D, infra, 18a). Without complying, Associated

filed this action for declaratory and injunctive relief

in the United States District Court for the Eastern

District of Virginia, challenging the validity of the

Commission’s regulations and procedures allowing

disclosure of information to charging parties and

their attorneys prior to suit, including disclosure

made during the course of investigating and concili-

ating a charge (ibid.). The suit was subsequently

consolidated with an action filed by the Commission

2In October 1977, the regulation, which since 1966 had

authorized disclosure to the immediate parties, witnesses and

interested governmental authorities, was amended to include

disclosure to the parties’ attorneys, as had been the Commis-

sion’s prior informal practice. 42 Fed. Reg. 55392 (1977).

in the United States District Court for the Western

District of Pennsylvania to enforce its subpoena.

Associated contended in both suits that the Commis-

sion’s limited disclosure rules violated the prohibi-

tions in Sections 706(b) and 709(e) against making

information obtained by the Commission “public”

prior to the institution of a suit.

The district court enforced the subpoena but held

that the Commission’s disclosure procedures are in-

valid (App. D, infra, 16a-32a). It concluded that

limited disclosure to charging parties and their at-

torneys is a prohibited disclosure to the “public” (7d.

at 22a-25a). The court of appeals affirmed over the

_ dissent of Judge Hall (App. A, infra, 1la-13a). The ma-

jority adopted the reasoning of Sears, Roebuck & Co.

v. Equal Employment Opportunity Commission, 581

F.2d 941 (D.C. Cir. 1978), and Burlington Northern,

Inc. v. Equal Employment Opportunity Commission,

582 F.2d 1097 (7th Cir. 1978), cert. denied, 440 U.S.

930 (1979), both of which held that the prohibitions on

public disclosure prohibit the Commission from re-

leasing to individual charging parties investigative

materials obtained in nationwide investigations of

multiple charges (including commissioner’s charges)

against the same employers. The court of appeals

refused to follow the decision in H. Kessler & Co. v.

Equal Employment Opportunity Commission, 472 F.

2d 1147 (5th Cir.) (en bane), cert. denied, 412 U.S.

939 (1973), which held that disclosure to charging

parties of information relating to their own indi-

vidual charges is not disclosure to the public within

the meaning of Sections 706(b) and 709(e). Reject-

ing the EEOC’s contention that its investigation and

conciliation functions would be frustrated if it could

not disclose information to the persons directly in-

volved in a charge, the court stated that necessary

corroboration of information may “easily be ob-

tained” by interrogating employees and witnesses on

the basis that “ ‘it has been said’ or ‘it has been re-

ported’ without providing them with letter and verse

of the employer’s contentions * * *” (App. A, infra,

6a).

Judge Hall dissented on the ground that the lim-

ited disclosure authorized by the Commission to im-

mediate parties involved best served the purposes of

the Act. “Once a private action has been brought

under Title VII,” he observed, “the statute imposes

no restrictions on the public dissemination of relevant

material in the EEOC files, except for conciliation

information” (App. A, infra, 10a). He agreed with

the Commission that disclosure before suit “dis-

courage,s] meritless litigation, by informing poten-

tial litigants of the weakness of their cases * * *”

(id. at 10a-1la).

REASONS FOR GRANTING THE PETITION

1, There is an irreconcilable conflict among the

circuits. In H. Kessler & Co. v. Equal Employment

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

412 U.S. 939 (1973), the Fifth Circuit, sitting en

bane, held that the word “public,” in each of the

three places it appears in Sections 706(b) and 709(e),

refers to disclosures to the public at large and does

not refer to disclosures to the immediate parties or

their counsel. As here, Kessler arose after an em-

ployer refused to comply with an investigative de-

mand. The Commission brought suit to enforce the

demand, and the employer sued to quash it, among

other reasons, because the Commission’s policy was

to allow investigative material to be turned over to

the charging party’s counsel. See 53 F.R.D. 330,

340 (N.D. Ga. 1971). On appeal, the Fifth Cir-

cuit’s en bane decision rejected the employer’s argu-

ment and approved the Commission’s practice of dis-

closing materials to “the charging party, the re-

spondent, witnesses, and representatives of inter-

ested Federal, State and local agencies as may be

appropriate or necessary to the carrying out of the

Commission’s functions * * *” and to “counsel for

the charging party after expiration of the statutory

period for investigation and conciliation (60 days

[now 180 days] from the date of filing with the Com-

mission) to determine whether or not, in counsel’s

opinion, the facts justify the commencement of a

civil action * * *.” 472 F.2d at 1149. These are the

same practices, reviewed in the same procedural pos-

ture, that were held invalid by the decision below.*

3 Kessler is also at odds with Sears, Roebuck and Co. V.

Equal Employment Opportunity Commission, 581 F.2d 941

(D.C. Cir. 1978), and Burlington Northern, Inc. v. Equal

Employment Opportunity Commission, 582 F.2d 1097 (7th

Cir. 1978), cert. denied, 440 U.S. 930 (1979), although those

decisions arose in a different factual context. In Sears and

Burlington Northern the investigative files at issue were the

2. The decision below is incorrect. The Commis-

sion has a statutory responsibility to attempt to nego-

tiate settlements between employers and employees.

42 U.S.C. 2000e-5(b). To this end, the Commission

necessarily must disclose investigative materials.

Senator Humphrey, when introducing the nondisclo-

sure provision that was eventually enacted, explained

that the ban on public disclosure was “a ban on pub-

licizing” and did not prohibit “such disclosure as is

necessary to the carrying out of the Commission’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 (472 F.2d 1151),

although the term “make public” is not defined in the

Act, it is used in a manner that supports the Commis-

Commission’s “nationwide files” on the employers which con-

tained information concerning more than the circumstances of

the charging party’s employment. Both cases, moreover, in-

volved the additional issue of whether Section 709 (e) prohibits

disclosure to the named plaintiffs in actual or threatened class

actions comprehending employees allegedly discriminated

against.

sion’s interpretation of the term. Section 706(b), 42

U.S.C. 2000e-5(b), states that the Commission shall

furnish the employer with “a notice of the charge (in-

cluding the date, place and circumstances of the alleged

unlawful employment practice) ,” 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 pari of the conciliation proceedings “may be made

public by the Commission * * * without the written

consent of the persons concerned.” Since the em-

ployer is thus to be informed about the charge, and

since the employer and the aggrieved person must be

parties to any conciliation, both the charge and mat-

ters arising in the course of conciliation proceedings

will necessarily be known or made known to both the

charging party and the employer. Accordingly, the

the term “public” in Section 706(b) plainly con-

templates persons other than the charging party and

the employer. There is no suggestion that the term

was meant to carry a different meaning when used in

Section 709(e). Accordingly, the term “make pub-

lie’ throughout Title VII should not be read to pro-

hibit disclosures to the employer, the charging party,

and their counsel.*

4 In support of its decision, the court below incorporated by

reference the reasoning of the Seventh and D.C. Circuits in

Sears and Burlington Northern. Those opinions are unper-

suasive. First, Burlington Northern suggested that disclosure

of materials in the investigative file would stir up litigation.

582 F.2d at 1100. At least as applied to individual charging

parties, however, it is a failure to disclose that could well

3. The issue is of substantial importance. The

court below made clear, as the courts in Sears and

Burlington did not, that under its interpretation of

Sections 706(b) and 709(e) the Commission is even

have that 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

litigation as an investigative tool and to postpone serious

settlement negotiations until after suit has been filed and the

Commission’s investigative materials have been obtained.

Second, contrary to the suggestion of the court of appeals in

Burlington Northern, 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 no reason to suppose that Congress in-

tended to alter the scope of its ban on publicizing investigative

materials. See International Brotherhood of Teamsters v.

United States, 431 U.S. 324, 354 n.89 (1977). With respect

to conciliation, Congress changed the language of former

Section 706(a), 42 U.S.C. (1970 ed.) 2000e-5(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 ex-

planation in the legislative history for this change and

no suggestion that a modification in substance was intended.

The court’s suggestion that Congress in 1972 intended

private employment discrimination actions to play a less

prominent role in civil rights enforcement is erroneous. Con-

gress in 1972 was careful to preserve the private right of

action. See Occidental Life Insurance Co. v. Equal Employ-

ment Opportunity Commission, 482 U.S. 355, 361-366 (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 private

right of action remains an essential means of obtaining

judicial enforcement of Title VII.” For a critique of the

various arguments adopted in Sears and Burlington Northern,

see Comment, The Meaning of “Public” in Section 709(e) of

the 1964 Civil Rights Act and Access to Information Gathered

by the EEOC,” 67 Ky. L. J. 480 (1978-1979).

prohibited from revealing any information about a

charge to the immediate parties during the investi-

gation and conciliation of the charge.’ This ruling

will impose a severe restraint on the Commission’s

process of conciliation. In 1977, the Commission

adopted a conciliation procedure under which, after

obtaining a statement from charging parties and

requesting answers to interrogatories from the em-

ployers, it invites charging parties and employers to

a fact-finding conference. This procedure has re-

sulted in the settlement of far greater numbers of

charges than had previously occurred, but, under the

decision of the court of appeals, its effectiveness

would be greatly impaired because disclosures by the

Commission to the parties during these conferences

would be unlawful, in the absence of consent."

5 The court’s view that information may not be disclosed

to facilitate the investigation or conciliation of a charge is

manifest in its conclusion that the prohibitions on disclosure

will not unduly restrict Commission investigations because

corroborative information can be obtained by indirect methods,

without direct disclosure of investigative materials (App. A,

infra, 6a).

6 The new fact-finding procedure was first instituted in the

EEOC district offices in Baltimore, Dallas and Chicago. In

one year’s time the proportion of negotiated settlements out

of all charges filed rose in these regions from 14% to 48%.

See EEOC, Report on Results in Model Offices Testing New

Charge Processing Systems 1 (Sept. 1977-1978). Already some

employers in the Fourth Circuit have refused to attend fact-

finding conferences on the ground that this would result in

disclosure of investigative material.

We assume that investigative materials could be disclosed

with consent, although Section 709(e) does not specifically so

Moreover, the work of an investigator is obviously

frustrated if facts given by one party cannot be

presented to the other for verification or denial. On

the basis of its experience, the Commission believes

that, unless it has the ability to name names or show

documentary evidence, rather tlian having to rely en-

tirely on the sort of cireumlocutions suggested by the

opinion below (see App. A, infra, 6a),’ the parties

often will not accept statements made to them by

EEOC investigators, for purposes of either investi-

gation or settlement. Conciliation would be especially

hampered because the Commission would be prohibited

from disclosing information to enable the parties to

appreciate the merits of the charge, to assess the

strengths and weaknesses of their respective positions,

and to evaluate the terms of a settlement proposal.

Moreover, under the court of appeals’ decision, the

Commission would be unable to disclose, as it nor-

mally does in its reasonable-cause decisions, the facts

underlying its finding that there is probable cause to

believe the charge is true.

provide. It cannot be assumed, however, that both parties to a

charge will consent to full unconditional disclosure at the

discretion of the Commission.

7 If the “public” in fact includes the immediate parties, we

question whether the indirect methods of obtaining corrobo-

rative evidence suggested by the court—inquiring by stating

that “‘it has been said’”—are permitted under the court’s con-

struction of Section 709(e). That section states that the

Commission may not “make public in any manner whatever

any information obtained * * *.” 42 U.S.C. 2000e-8(e)

(emphasis supplied).

—_

It is essential to the effective functioning of the

Commission that the conflict in decisions concerning

information the Commission can and cannot reveal

be resolved. As a result of the conflicting decisions,

the Commission has different disclosure rules in ef-

fect in different circuits regarding both the disclosure

of information during its conciliation and investiga-

tive proceedings and the disclosure of materials in

its investigative files to charging parties for the pur-

pose of bringing suit. Particularly in view of the

fact that Sections 706(b) and 709(e) impose crimi-

nal penalties on Commission employees for prohibited

disclosure, the uncertainty and confusion resulting

from the conflicting decisions should be resolved.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WabDE H. MCCREE, JR.

Solicitor General

Drew S. Days, III

Assistant Attorney General

WILLIAM ALSUP

Assistant to the Solicitor General

LEROY D. CLARK

General Counsel

JOSEPH T. EDDINS

Associate General Counsel

BEATRICE ROSENBERG

Assistant General Counsel

VELLA M. FINK

Attorney

Equal Employment Opportunity Commission

JANUARY 1980

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 78-1695

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

APPELLEE

Vv.

JOSEPH HORNE COMPANY, A Division of

Associated Dry Goods Corporation, APPELLANT

No. 78-1696

ASSOCIATED DRY GOODS CORPORATION, APPELLEE

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

APPELLANT

Appeal from the United States District Court for the

Eastern District of Virginia, at Richmond,

Robert R. Merhige, Jr., District Judge

Argued April 4, 1979 Decided October 10, 1979

Before HAYNSWORTH, Chief Judge, and WINTER

and HALL, Circuit Judges.

WINTER, Circuit Judge:

In these consolidated cases, the Equal Employment

Opportunity Commission (EEOC) sought to enforce

its administrative subpoena duces tecum to obtain

information about the employment practices of

Joseph Horne Company (Horne), a wholly owned sub-

sidiary of Associated Dry Goods Company (Associ-

ated) with regard to race and sex, and Associated

sought to challenge the validity of certain practices of

EEOC relating to disclosure of EEOC investigative

files to charging parties both by a suit for declara-

tory and injunctive relief and by resistance to the

subpoena. The district court held that the EEOC pro-

cedural regulations set forth in 29 C.F.R. §§ 1601.20

and 1601.17(d) and the special disclosure rules con-

tained in § 83 of the EEOC Compliance Manual were

void, invalid and unenforceable to the extent that they

authorize EEOC to disclose to charging parties any in-

formation in EEOC investigative files. It therefore

enjoined such disclosures and it granted enforcement

of the subpoena subject to this restriction on the use

of the data to be obtained. Finally, Associated’s re-

quest for attorneys’ fees was denied.

Both parties appeal, and we affirm.

From November 1971 through June 1973, several

employees and former employees of Horne filed race

and sex discrimination charges with EEOC. The lat-

ter undertook to investigate the charges and it served

interrogatories on Horne, seeking relevant informa-

tion. Horne, however, refused to answer the in-

terrogatories without assurances from EEOC that the

answers would not be disclosed to the charging par-

ties, their attorneys, or others. EEOC’s view of its

authority and its policy is directly to the contrary,

see 29 C.F.R. §§ 1601.20 (current version at 29

C.F.R. § 1601.22) and 1601.17(d); § 83 of EEOC

Compliance Manual, and it declined to give the re-

quested assurances. EEOC therefore issued a sub-

poena duces tecum to obtain the information. Horne

petitioned EEOC to revoke the subpoena. At the time,

EEOC had three commission members, two of whom

affirmatively approved the decision not to revoke it.

When Horne’s petition was denied, Horne did not

comply with the subpoena; but Associated filed an

action challenging the Commission’s disclosure poli-

cies and seeking declaratory and injunctive relief.

EEOC in turn instituted suit to enforce compliance

with its subpoena and the cases were consolidated and

decided together.

II.

The first issue that we must address is Associated’s

argument that the subpoena was invalidly issued be-

cause EEOC lacked a quorum when it denied Horne’s

petition to revoke the subpoena. Its argument is

premised upon the fact that the Commission has a

statutory size of five members, 42 U.S.C. § 2000e-4

(a), with a direction that three shall constitute a

quorum, 42 U.S.C. § 2000e-4(c), and the record shows

that only two commissioners voted in writing to deny

the petition to revoke the subpoena, notwithstanding

that 29 C.F.R. § 1601.15(b) (1975) in effect at the

time provided that a petition to revoke a subpoena

shall be reviewed by the Commission. The district

court was of the view that since the two votes ap-

proving denial of the petition would likely have pre-

vailed in any event, any absence of the third member

was immaterial and only a de minimis deviation from

EEOC’s then regulation.

We are in essential agreement with the district

court. We have heretofore approved the validity of the

regulation which permits the Compliance Director’s

determination of whether to permit a subpoena to

issue to prevail unless the Commission decides other-

wise. EEOC v. South Carolina National Bank, 562

F.2d 329, 333 (4 Cir. 1977). Under the regulation,

the members of the Commission need take affirmative

action only if they conclude to reverse the Compliance

Director’s determination. Here the record shows that

a majority of the then Commission voted to sustain is-

suance of the subpoena so that the subpoena would

have issued regardless of the vote of the third mem-

ber. Since we view a vote on the correctness of the

Compliance Director’s determination not a consultive

act requiring an exchange of views, we think it makes

no difference to the validity of the subpoena that the

record does not show a vote by the third member.

III.

The Commision appeals from the determination

that the disclosure to charging parties and their at-

torneys of investigative materials prior to suit is in

violation of 42 U.S.C. § 2000e-5(b) and 2000e-8(e),

and therefore 29 C.F.R. §§ 1601.20 (current version

at 29 C.F.R. § 1601.22) and 1601.17(d) and the

special disclosure rules of § 83 of EEOC Compliance

Manual are void to the extent that they provide

otherwise.

The restrictions upon disclosure by EEOC of in-

vestigative information contained in §§ 2000e-5(b)

and 2000e-8(e) and their effect upon the validity of

EEOC’s regulations and Compliance Manual have

been thoroughly considered by three Courts of Ap-

peals with conflicting conclusions. The Fifth Circuit

in H. Kessler & Co. v. EEOC, 472 F.2d 1147 (5 Cir.

1973) (in bane), a case on which EEOC heavily re-

lies, held that charging parties and their attorneys are

not members of the “public” within the meaning of

the restrictive statutory language and consequently

the regulations and the Compliance Manual do not

exceed the statute and thus are valid and enforceable.

The District of Columbia Circuit in Sears, Roebuck

& Co. v. EEOC, 581 F.2d 941 (D.C. Cir. 1978), a

case on which the district court in the instant case

relied, and the Seventh Circuit in Burlington North-

ern, Inc. v. EEOC, 582 F.2d 1097 (7 Cir. 1978), cert.

denied, US. (February 21, 1979), reached

the opposite conclusion. While Sears and Burlington

attempted to distinguish Kessler (unpersuasively, we

think), they also declined to follow it if it were indis-

tinguishable.

The analysis of the legal arguments, the legislative

history and the policy considerations on both sides of

the question are so fully developed in Kessler, Sears

and Burlington that we see little purpose in repeat-

ing them here, except to comment on two arguments

of EEOC which are made to us. First, EEOC con-

tends that a decision prohibiting EEOC from dis-

closure will unduly restrict it in conducting an

investigation as, for example, when EEOC seeks

corroboration from the individuals concerned of in-

formation supplied by their employer that their quali-

fications for the position to which they were promoted

or for which they were hired were superior to those

of the charging party who was not promoted or hired.

We think that such corroboration may easily be ob-

tained without violating the statutory restrictions by

interrogating those employees on the basis that “it

has been said” or “it has been reported” without

providing them with letter and verse of the employer’s

contentions or the specific identity of the representa-

tive of the employer advancing the contention. Sec-

ond, we do not view our decision in Charlotte-Meck-

lenburg Hospital Authority v. Perry, 571 F.2d 195

(4 Cir. 1978), as supporting EEOC’s position in the

instant case. That case arose under the Freedom of

Information Act and the parties did not dispute the

then judicial and administrative construction of Title

VII permitting disclosure of investigative files to the

party charged and the charging party. The instant

case presents the dispute and we resolve it by follow-

ing the District of Columbia and the Seventh Circuits.

We therefore hold that §§ 2000e-5(b) and 2000e-8

(e) prohibit EEOC from disclosing investigative ma-

terials to the parties prior to suit. The provisions of

the regulations and the Compliance Manual purport-

ing to authorize such disclosures are invalid and

unenforceable.

IV.

For the reasons assigned by the district court, we

see no merit in Associated’s contentions that enforce-

ment of the subpoena should be forbidden because of

EEOC’s delay or misconduct in causing it to be is-

sued, or because a charging party (Alice M. Corvino)

filed suit to redress the discrimination allegedly prac-

ticed by Horne against her. Manifestly, in the view

that we take of the case, the district court was correct

in denying Associated counsel fees.

AFFIRMED.

HALL, Circuit Judge, concurring in part and dissent-

ing in part:

I concur in that portion of the majority opinion

which grants enforcement of the EEOC subpoena and

denies the attorney fees requested by Horne, but dis-

sent from the majority’s invalidation of the EEOC

disclosure rules.

The EEOC rules at issue allow an individual who

files an eniployment discrimination charge with the

agency, and who is considering pursuing his com-

plaint through private litigation, to inspect portions

of the material the agency has gathered in the course

of investigating his charge. The majority now holds

that this disclosure violates the command of 42 U.S.C.

§§ 2000e-5(b) and 2000e-8(e) that the agency shall

not “make public” the results of its investigations

until litigation involving the information has begun.

The majority adopts the analyses of Sears, Roebuck

& Co. v. EEOC, 581 F.2d 941 (D.C. Cir. 1978) and

Burlington Northern, Inc. v. EEOC, 582 F.2d 1097

(7th Cir. 1978), cert. denied 99 S.Ct. 1267 (1979),

decisions based not so much on the language of the

statute " as on the courts’ belief that disclosure would

' Neither the language of the statute nor its history ad-

dresses the issue of whether the charging party is a member

of the “public” to whom disclosure is forbidden. The Fifth

Circuit, sitting en banc and construing essentially the same

statutory language, concluded that the term “public” does

not include the charging party. H. Kessler & Co. v. EEOC,

472 F.2d 1147 (5th Cir. 1973) (en banc), cert. denied 412

U.S. 939. See also Charlotte-Mecklenburg Hospital Authority

Vv. Perry, 571 F.2d 195 (4th Cir. 1978), in which this court

ordered the disclosure of EEOC investigatory material to a

party charged with discrimination, apparently accepting the

plaintiff’s uncontested argument that the language of Title

VII “suggests a manifest distinction between, on the one

hand, right of disclosure to the public generally, and, on the

other hand, a right of disclosure to the parties themselves .. .

{[D]Jisclosure to the parties—whether to the party charged

or to the charging party—is not within the prohibitions of

Title VII.” 571 F.2d at 199.

encourage private litigation and “necessarily under-

cut the preferred enforcement scheme of comprehen-

Sive negotiation and settlement.” Burlington North-

ern, 582 F.2d at 1100. I believe that these decisions

are predicated upon a fundamental misconception of

both the importance of private litigation in Title VII

enforcement and the impact of the disclosure rules

on the conciliation process.

The Commission’s disclosure rules, to the extent

that they allow a charging party access to his own

case file,” are narrow in scope. Disclosure of the file

contents is permitted only “in connection with pend-

ing or contemplated litigation.” EEOC Compliance

Manual § 83.3(a). No disclosure is made prior to

the beginning of the 90-day period during which a

private action may be brought, absent a showing of

“compelling need.” Compare 42 U.S.C. § 2000e-5 (f)

(1) with EEOC Compliance Manual § 83.3(a). Cer-

tain types of information are expunged from the case

file before it is disclosed, including the identities and

statements of witnesses who have been promised con-

fidentiality by the Commission, and all information

concerning the Commission’s attempts to settle the

? The rules also permit the charging party to inspect files

containing other charges against the same respondent which

allege similar types of discrimination. EEOC Compliance

Manual § 83.7(c). I believe that this constitutes “publicizing”

the other files, and that this disclosure, prior to litigation in-

volving the information, is forbidden by the statute. I would

invalidate the disclosure rules only insofar as they allow a

party access to other case files.

10a

charge through conciliation.’ Id. § 83.6. Once a pri-

vate action has been brought under Title VII, the

statute imposes no restrictions on the public dissemi-

nation of relevant material in the EEOC files, except

for conciliation information. Therefore, in most cases

the practical effect of the disclosure rules is to allow

access to investigatory material 90 days, at most,

before it would otherwise be disclosed.

I do not believe that such a limited disclosure of

information would have the dire effects predicted by

the Sears and Burlington Northern courts.* The Com-

mission contends that the disclosure rules discourage

$ The employer in this case contends that confidential busi-

ness data is included in the materials disclosed by the Com-

mission, although it offers no substantiation for this claim.

Regardless of whether the Commission’s disclosure rules

specifically exempt legitimate trade secrets and other confi-

dential business information, disclosure of such material is

forbidden by 18 U.S.C. § 1905, and the Administrative Pro-

cedures Act provides an adequate remedy for threatened vio-

lations of this statute. See Chrysler Corp. v. Brown, 99 S.Ct.

1705 (1979).

4In addition to fear that the disclosure rules undercut the

Commission’s settlement efforts, the Sears court expressed

concern that the Commission could not enforce the agreements

it requires as a condition of disclosure, which prohibit the

charging party from public dissemination of the information.

EEOC Compliance Manual § 83.3(b). “[C]Jounsel for the

Commission asserted that the EEOC .. . could seek to enjoin

parties from violating their agreement . . . . When pressed,

however, counsel could point to no instance when this had

been done.” 581 F.2d at 946. This may be explained by the

Commission’s uncontested assertion in this court that there

has never been a violation of the agreement in the 13 years

during which the rules have been in effect.

lla

meritless litigation, by informing potential litigants

of the weakness of their cases, and that meritorious

suits which may be encouraged by the rules comple-

ment, rather than hinder, its own enforcement efforts.

I find this assessment by the agency responsible for

enforcing Title VII, based on thirteen years of expe-

rience with the disclosure rules in practice, more

persuasive than speculation engaged in by the courts.

Cf. Cannon v. University of Chicago, 99 S.Ct. 1946,

1962-1963 (1979).

The Sears and Burlington Northern decisions,

which the majority now adopts, are premised upon a

concept of private litigation as the ugly stepchild in

the Title VII scheme, to be discouraged whenever

possible.” But private litigation has been an integral

° This theory is criticized, based upon a thorough review of

the legislative history of Title VII, in The Meaning of “Pub-

lic” in Section 709(e) of the 1964 Civil Rights Act and Access

to Information Gathered by the EEOC, 67 Ky. L.J. 430 (1978-

79).

The congressional explanation of the need for the 1972

Amendments casts doubt upon the Sears and Burlington

Northern courts’ faith in voluntary conciliation as the pre-

ferred means of ending discrimination:

During the preparation and presentation of Title VII of

the Civil Rights Act of 1964 ... [i]t was thought that

a scheme which stressed conciliation rather than compul-

sory processes would be more appropriate for the reso-

lution of this essentially “human” problem. Litigation,

it was thought, would be necessary only on an occasional

basis in the event of determined recalcitrance. Experi-

ence, however, has shown this to be an oversimplified

expectation, incorrect in its conclusions . . . [T]he Com-

mission has been able to achieve successful conciliation

12a

part of the Title VII enforcement scheme since the

statute’s enactment in 1964. The 1972 Amendments

strengthened the Commission’s own enforcement

powers, but also encouraged private actions through

provisions for appointment of counsel and commence-

ment of actions without payment of fees, costs or

security. In retaining private litigation as a critical

enforcement tool, Congress emphasized that “[t]he

primary concern must be protection of the aggrieved

person’s option to seek a prompt remedy in the best

manner available.” H.R. Rep. No. 238, 92nd Cong.,

Ist Sess., reprinted in 1972 U.S. Code Cong. & Ad.

News 21387, 2148.

Congress also recognized that “the nature of Title

VII actions more often than not pits parties of un-

equal strength and resources against each other. The

complainant, who is usually a member of a dis-

advantaged class, is opposed by an employer who not

infrequently is one of the nation’s major producers,

and who has at his disposal a vast array of resources

and legal talent.” Jd. at 2148. This disparity is in-

creased by the fact that “the entire area of employ-

ment discrimination is one whose resolution requires

not only expert assistance, but also the technical per-

ception that a problem exists in the first place, and

in less than half of the cases in which reasonable cause

was determined. It has been the emphasis of voluntari-

ness that has proven to be most detrimental to the suc-

cessful operation of Title VII. H.R. Rep. No. 238, 92nd

Cong., 1st Sess., reprinted in 1972 U.S. Code Cong. & Ad.

News 21387, 2143-2144.

18a

that the system complained of is unlawful.” Jd. at

2144. The disclosure rules, in recognition of this dif-

ficulty, provide the aggrieved individual with the

benefit of the Commission’s “technical perception” at

the most appropriate time—when he must decide

whether to bring a private action. The majority’s

invalidation of the rules will force the individual to

file an action, and then learn through discovery

whether he has a meritorious case. I fail to see how

this will promote any of the statute’s objectives.

In upholding the right of an individual to bring an

action alleging employment discrimination under 42

U.S.C. § 1981, by-passing the administrative rem-

edies entirely, the Supreme Court stated: “Concilia-

tion and persuasion through the administrative

process, to be sure, often constitute a desirable ap-

proach to settlement of disputes based on sensitive

and emotional charges of invidious employment dis-

crimination. We recognize, too, that the filing of a

lawsuit might tend to deter efforts at conciliat‘on,

that lack of success in the legal action could weaken

the Commission’s efforts to induce voluntary com-

pliance, and that a suit is privately oriented and nar-

row, rather than broad, in application, as successful

conciliation tends to be. But these are the natural

effects of the choice Congress has made available to

the claimant by its conferring upon him independent

administrative and judicial remedies. The choice is

a valuable one.” Johnson v. Railway Express Agency

Inc., 421 U.S. 454, 461 (1975). I dissent from the

majority’s attempt to limit that choice.

l4a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 78-1695

[Filed Oct. 10, 1979]

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

APPELLEE

vs.

JoSEPH HoRNE CoMPANY, A Division of

Associated Dry Goods Corporation, APPELLANT

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

JUDGMENT

THIS CAUSE came on to be heard on the record

from the United States District Court for the East-

ern District of Virginia, and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court that the

judgment of the said District Court appealed from,

in this cause, be, and the same is hereby, affirmed.

/s/ William K. Slate

Clerk

15a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 78-1696

[Filed Oct. 10, 1979]

ASSOCIATED DRY GOODS CORPORATION, APPELLEE

Vs.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

APPELLANT

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

JUDGMENT

THIS CAUSE came on to be heard on the record

from the United States District Court for the East-

ern District of Virginia, and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court that the

judgment of the said District Court appealed from,

in this cause, be, and the same is hereby, affirmed.

Clerk

16a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

Civil Action No. 75-0297-R

[Filed Jul. 18, 1978]

ASSOCIATED Dry GOODS CORPORATION, PLAINTIFF

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

ET AL., DEFENDANTS

—AND—

Civil Action No. 76-0510-R

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

PLAINTIFF

Vv.

JOSEPH HORNE COMPANY, DEFENDANT

MEMORANDUM

Associated Dry Goods Corporation (“Associated”),

plaintiff herein, brings this action to challenge certain

practices of defendant Equal Employment Opportun-

ity Commission (“EEOC”) relating to disclosure of

EEOC investigative files to charging parties. Con-

solidated with Associated’s action is an application by

17a

the EEOC to enforce an EEOC administrative sub-

poena duces tecum against one of Associated’s sub-

sidiaries, the Joseph Horne Company (“Horne’s’).

Jurisdiction is premised upon the Administrative Pro-

cedure Act, 5 U.S.C. §§ 551 et seqg.; on Title VII of

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

et seq.; and on 28 U.S.C. § 1331.

The facts, briefly stated, are as follows: From

November 1971, through June 1973, several employees

and former employees of Horne’s filed race and sex

discrimination charges against Horne’s with the

EEOC. The EEOC began investigating the charges

by serving interrogatories on Horne’s in February

and April of 1974. Horne’s refused to answer the in-

terrogatories without assurances from the EEOC that

the answers would not be disclosed to the charging

parties, their attorneys, or others. The EEOC could

not offer such assurance. Rather, the Commission ex-

plained that its policy was to disclose to charging

parties both their own case files (including data sub-

mitted by the employer in response to Commission in-

terrogatories) and “related case files”—files involving

the same employer which were compiled during the in-

vestigation of similar charges filed by other individ-

uals. The only conditions attached to such disclosures

were that the charging party use the information “in

connection with contemplated or pending litigation,”’

and that he or she agree in writing not to make the in-

formation public except in the normal course of a civil

action or other proceeding instituted under Title VII.

The Commission admitted, however, that it had “no

18a

way of preventing charging parties from transmit-

ting information to others.

Lacking the assurance it sought, Horne’s continued

to withhold the information which the EEOC had re-

quested in its interrogatories. On October 18, 1974,

the Commission issued a subpoena for the informa-

tion. On October 23, 1974, Horne’s petitioned for

revocation of the subpoena, and on May 9, 1975, its

petition was denied.

Horne’s did not comply with the subpoena. Instead,

on June 27, 1975, Associated (Horne’s parent com-

pany) filed the instant action, challenging the Com-

mission’s disclosure policies and seeking declara-

tory and injunctive relief. The EEOC moved to

dismiss the suit. On June 25, 1976, this Court denied

in part and sustained in part the Commission’s mo-

tion to dismiss. Associated Dry Goods Corp. v. EEOC,

419 F.Supp. 814 (E.D. Va. 1976). By order of July

8, 1976, the Court instructed the parties to brief the

sole remaining issue: whether § 706(b) of Title VII,

as civilly invoked, prohibited the EEOC from disclos-

ing investigative materials to charging parties.’ That

issue has now been fully briefed. Additionally, the

parties have addressed the closely related issue of

whether § 709(e) of Title VII prohibits the KEOC

1 Plaintiff is not challenging here the EEOC’s disclosure

of information in response to subpoenas, demands, or orders

of courts to other authorities; or in cases where the EEOC

is a party to the litigation; or in response to requests made

by representatives of interested federal, state or local au-

thorities. In short, plaintiff is not concerned in the instant case

with disclosure to other governmental authorities. (Plaintiff’s

Supplemental Memorandum at 13, n. 16, filed August 9, 1976).

19a

from disclosing investigative materials to charging

parties. These issues are now ripe for disposition.

For the reasons which follow, judgment on the

merits will be entered in favor of Associated as to

the disclosure issues. At the same time, the EEOC’s

application for enforcement of its investigative sub-

poena will be granted, subject to the conditions im-

plicit in the Court’s holding on disclosure.

Plaintiff specifically challenges the procedural reg-

ulations found at 29 C.F.R. §§ 1601.20 ° and 1610.17

(d),° and the EEOC’s “‘special disclosure rules” con-

229 C.F.R. § 1601.20, entitled “Confidentiality”, provides

as follows:

Neither a charge, nor information obtained pursuant

to § 709(a) of Title VII, nor information obtained from

records required to be kept or reports required to be filed

pursuant to §§ 709(c) and (d) of said Title shall be made

matters of public information by the Commission prior

to the institution under this Title of a court proceeding

involving such charge or information.

This provision does not apply to such earlier disclosures

to the charging party, the respondent, witnesses, and

representatives of interested federal, state and local agen-

cies as may be appropriate or necessary to the carrying

out of the Commission’s functions under the Title, nor

the publication of data derived from such information

in a form which does not reveal the identity of the charg-

ing party, respondent or persons supplying the informa-

tion. [Emphasis added.]

329 C.F.R. § 1620.17(d) provides as follows:

Special disclosure rules apply to the case files for

charging parties, aggrieved persons on whose behalf a

—

20a

tained in § 83 of the EEOC Compliance Manual.*

Under these rules and regulations, the EEOC may

charge has been filed, and entities against whom charges

have been filed. Special disclosure rules are available in

the public reading areas of the Commission. Under

§§ 706 and 709, case files involved in the administrative

process of the Commission are not available to the public.

[Emphasis added. ]

4 Section 83 of the EEOC Compliance Manual, in pertinent

part provides as follows:

Disclosure of Information in Case Files

83.1 General—Section 709(e) of Title VII makes it un-

lawful for any employee of the Commission to make pub-

lic information obtained by the Commission pursuant to

its general authority to investigate charges of discrimina-

tion prior to the institution of any proceeding under

Title VII. The Fifth Circuit Court of Appeals has held

(Kessler v. EEOC, 472 F.2d 1147 (5th Cir. 1973)) that

granting access to such information to charging parties

or their attorneys prior to the institution of a proceed-

ing under Title VII is not “making public” within the

meaning of that term as used in § 709(e).

83.3 Conditions Precedent to Disclosure. Information in

case files may be disclosed on request to the persons

indicated in 83.5 under the following conditions:

(a) In Connection with Pending or Contemplated

Litigation. Information in case files may be disclosed

provided that the request is made ‘for-the purpose of

reviewing information in the case file in connection with

pending or contemplated litigation. Access to the infor-

mation will not be granted prior to the expiration of the

180-day period prescribed at Section 706(f) (1) of Title

VII except when the charge has been dismissed or the

aggrieved or charging party demonstrates a compelling

need for access prior to the expiration of the 180-day

period; and

(b) Persons Requesting Disclosure Must Agree Not

to Make the Information Public. Information in case

2la

furnish materials from its investigative files to em-

ployees contemplating private Title VII litigation

against employers under investigation by the Com-

mission. It is the plaintiff’s contention that this

practice contravenes the statutory nondisclosure pro-

visions found at §§ 706(b) and 709(e) of Title VII.

Section 709(e) of Title VII, 42 U.S.C. § 2000e-8

(e), provides, in pertinent part:

It shall be unlawful for any officer or employe

of the Commission to make public in any manner

whatever any information obtained by the Com-

files may be disclosed only on the condition that the

persons requesting disclosure agree in writing not to

make the information obtained public except in the

normal course of a civil action or other proceeding in-

stituted under Title VII.

83.5 Persons to Whom Information In Case Files May

Be Disclosed. Information in case files may be disclosed

on request, after complying with the expunction require-

ments discussed in 83.6, to only the following persons:

(a)Charging Parties and their attorneys (except as

otherwise provided in 83.5(c) below) ;

(b) Aggrieved persons in case files involving Com-

missioner Charges and their attorneys provided that such

persons have been notified of their status as aggrieved

persons pursuant to Section 1601.25(c) of the Commis-

sion’s Procedural Regulations;

aggrieved person, provided that the aggrieved person

has given written authorization te the persons who filed

on his or her behalf to act as the aggrieved person’s

agent for this purpose and their attorneys;

(e) Respondents and their attorneys, provided that

the charging party or aggrieved person has filed suit

under Title VII.

22a

mission pursuant to its [investigative] authority

... prior to the institution of any proceeding

under this subchapter involving such informa-

tion. [Emphasis added. ]

The crucial phrase with respect to the case at bar

is “make public”. The EEOC argues that charging

parties are not members of the “public” for purposes

of § 709(e). Thus, the EEOC takes the position that

§ 709(e) does not bar it from disclosing to charging

parties information obtained pursuant to the Com-

mission’s statutory investigative powers.

The Court rejects the EEOC’s contentions in this

regard. The Court’s reasoning is aptly expressed by

the United States Court of Appeals for the District

of Columbia Circuit in the case of Sears, Roebuck

& Co. v. EEOC, Nos. 77-1822, 77-1995 and 77-1996,

16 E.P.D. § 8348 (D.C. Cir., June 9, 1978). Facing

nearly the identical issue posed in the instant case,

the District of Columbia Circuit stated:

An examination of the overall statutory scheme

persuades us that Title VII was never meant to

permit dissemination of EEOC investigative data

to anyone not within the government.

.. . It would do violence to the scheme of ne-

gotiation and settlement if the Commission were

permitted to encourage numerous private liti-

gants by distributing information from EEOC

files before the administrative procedures of

Title VII had run their course.

16 E.P.D. § 8348, at 5835.

The District of Columbia Circuit also noted in

Sears that the EEOC had no effective means of con-

23a

trolling the manner in which charging parties used

information which they obtained from the Commis-

sion’s files:

Although the Commission extracted promises

from the requesting parties with respect to some

of the information it proposed to distribute in

the instant case, such promises obviously are not

enforceable against those receiving information.

. . . As there is nothing to prevent charging

parties from redistributing what they receive

from the EEOC to whomever they please, dis-

tribution of investigative file data to charging

parties would be tantamount to distribution to

the public at large.

16 E.P.D. § 8348 at 5836.

Finally, the Sears opinion distinguished H. Kessler

& Co. v. HEOC, 472 F.2d 1147 (5th Cir.) (en banc),

cert. denied, 412 U.S. 939 (1973), formerly the lead-

ing case interpreting § 709(e). That case held that

an individual charging party could be given access

to his own EEOC investigative file. The District

of Columbia Circuit expressly declined to extend the

Kessler holding to a situation involving numerous

requests by parties bringing related charges, as op-

posed to the single request by the initial charging

party involved in Kessler. Moreover, the Sears opin-

ion implied that Kessler itself might no longer be

viable in light of the 1972 amendments to Title VII,

none of which were considered in that case. For the

same reasons, the Court is of the view that Kessler

is inapplicable to the case at bar.

24a

In summary, the Court of Appeals for the District

of Columbia Circuit held in Sears that § 709(e) of

Title VII prohibited the EEOC from disclosing its

investigative files to anyone outside the government,

including charging parties.

The District of Columbia Circuit reached a parallel

conclusion in reference to § 706(b) of Title VII, 42

U.S.C. § 2000e-5(b). That section provides, in rele-

vant part:

Nothing said or done during and as a part of

. . . informal endeavors [at conciliation], 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. [Emphasis added. ]

Observing that § 706(b) uses essentially the same

“make public” language found in § 709(e), and find-

ing no reason to construe the two provisions differ-

ently, the Court of Appeals held that § 706(b) pro-

hibited the EEOC from disclosing to parties outside

the government any information gleaned from settle-

ment or conciliation negotiations.

This Court finds the reasoning of the District of

Columbia Circuit in its Sears decision to be persua-

sive. Moroever, by facilitating and encouraging the

conciliation process, the Sears interpretation of §§ 706

(b) and 709(e) is in complete harmony with the

Fourth Judicial Circuit’s recognition that the EEOC’s

statutory duty to attempt conciliation “is among its

most essential functions.” Patterson v. American

Tobacco Co., 5385 F.2d 257, 272 (4th Cir. 1976).

—

25a

Consequently, this Court adopts the view stated in

Sears and will enter judgment on the merits in favor

of the plaintiff regarding the validity of the EEOC

rules and regulations at issue here.®

Il.

It remains to consider whether the EEOC’s ap-

plication for enforcement of its subpoena duces

tecum should be granted. While the plaintiff has ad-

vanced extensive arguments against enforcement, the

5 By letter of June 28, 1978, counsel for the EEOC made

the surprising claim that “the United States Court of Ap-

peals for the Fourth Circuit has already decided the issue of

‘making public’ under Title VII contrary to the decision

reached in Sears, supra.” In support of this proposition the

EEOC cited Charlotte-Mecklenburg Hospital Authority v.

EEOC, 571 F.2d 195 (1978). The Court has carefully re-

viewed the Charlotte-Mecklenburg case and finds no support

for any such contention. Charlotte-Mecklenburg was a Free-

dom of Information Act (“FOIA”) case. While §§ 706(b)

and 709(e) of Title VII figured in the opinion, disclosure

policy regarding investigative files was not in issue because

both litigants agreed that Title VII permitted certain dis-

closures to the charging perty and the charged employer. In

that posture the case hinged on exemption three of the FOIA

and the Court had no reason to analyze the “make public”

language of §§ 706(b) and 709(e).

To the extent that Charlotte-Mecklenburg does contain an

implicit holding on §§ 706(b) and 709(e), however, it is only

that certain disclosures from investigative files are permissi-

ble to charged employers. The decision contains no similar

implication regarding charging employees. Indeed, the court

apparently left open the issue faced in the instant case, noting

that while Title VII did not appear to bar disclosure to a

charged employer, “it may prohibit disclosure to some other

party.” 571 F.2d at 200-201 (footnote omitted).

26a

Court is of the view that the application should be

granted.

The EEOC applied for the enforcement of its ad-

ministrative subpoena duces tecum against Horne’s

on May 24, 1976, in the United States District Court

in Pittsburgh, Pennsylvania. On September 28, 1976,

that court transferred the enforcement action to this

Court for consolidation with the pending action filed

by Associated. On March 1, 1977, this Court issued

an order effecting consolidation.

The subpoena in question directs Horne’s to pro-

duce certain records which the EEOC considers rele-

vant to its investigation of specified charges of unfair

employment practices against Horne’s. Plaintiff’s ar-

guments against enforcement will be considered

seriatim.

Plaintiff’s first contention is that the EEOC never

formally approved its Compliance Director’s deter-

mination on Horne’s petition to revoke the subpoena.

There is no question that the subpoena was properly

issued, that Horne’s filed a timely petition to revoke

same, and that the EEOC Director of Compliance

denied the petition to revoke. Plaintiff's argument

focuses on the next step in the administrative process,

the full Commission’s review and approval of the

Compliance Director’s denial of the petition. Pur-

suant to 29 C.F.R. § 1601.15(b), the determination

of the Director of Compliance “shall be reviewed by

the Commission and unless the Commission decides

otherwise shall become final three days thereafter.”

The heart of plaintiff’s argument here is that the

27a

determination of the Director of Compliance was

never actually “reviewed by the Commission’ be-

cause, whereas it takes three members of the Com-

mission to constitute a quorum, only two members

apparently reviewed the determination by the Di-

rector of Compliance. Thus, plaintiff contends, no

Commission action ever occurred with respect to

Horne’s petition to revoke the subpoena.

The Court is not impressed by this contention.

While it may be factual that review of the Com-

vliance Director’s determination was conducted by

less than a quorum of the Commission, the third

Commissioner’s absence was in the Court’s view im-

materia! because his vote would not have affected the

result. The two votes approving the Compliance Di-

rector’s determination would most likely have pre-

vailed in any event.® Consequently, the Court con-

6 Associated’s position as set forth in their memorandum

filed February 11, 1977, at p. 28, n.64, is as follows:

Since a single Commissioner may request that a “hold”

be placed on any proposed Determination in order to

bring the case before the Commission, the failure to have

a statutory quorum review the Director of Compliance’s

suggested disposition may have a decisive impact upon

the outcome of the petition.

[Citing EEOC Compliance Procedures Manual, § 24.4(6).]

This position loses viability in light of the fact that the

Commission was not at full strength during the relevant time

period. Indeed, as Associated recognizes, there were only two

active commissioners at the time the Compliance Director’s

determination was reviewed. Two of the five allocated posi-

tions were vacant, and the third commissioner had been hos-

pitalized as a result of a heart attack. Thus, even if the two

28a

siders the apparent deviation from Commission regu-

lations to be de minimus, and therefore insufficient

grounds for denying enforcement of the Commission’s

subpoena.

The plaintiff’s second argument against enforce-

ment is that the EEOC should be precluded from

pursuing its own investigation with respect to charges

which are the subject of private Title VII actions.

This contention is also unpersuasive. The very case

active commissioners had waited for the third commissioner

to recover, or for a new commissioner to be confirmed, the

third commissioner could at best have brought the Horne’s

petition before the Commission which would have been com-

posed of himself and the two commissioners who had already

endorsed the Compliance Director’s determination. This is

quite different from the normal situation, when the Commis-

sion is functioning with its full complement of five active

commissioners, for in that situation a third commissioner’s

“hold” can bring the petition before at least two commission-

ers who have not yet reviewed the Compliance Director’s de-

termination. In that case, a third commissioner’s review

might often be decisive.

Assuming that a third commissioner had been available to

review the Compliance Director’s determination, however, his

review would have been material only if he had placed a

“hold” on it, and if he had maintained his disagreement with

the Compliance Director’s determination after hearing the

full facts, and if one of the other commissioners had joined

him by withdrawing his original approval of the subpoena.

Only then would Horne’s petition to revoke the subpoena have

been granted. This set of possibilities is in the Court’s view

too tenuous to serve as grounds for denying enforcement of

the EEOC’s subpoena, especially in view of the problems fac-

ing the Commission at that time. Congress cannot have in-

tended that the Commission be paralyzed during the entire

time it operated with only two active commissioners.

29a

cited by plaintiff in support of its proposition, EEOC

v. Duval Corp., 528 F.2d 945 (10th Cir. 1976) ex-

plicitly states that the EEOC has the right to inter-

vene in any pending private Title VII action. The

United States Court of Appeals for the Third Circuit

has gone even further, holding that the EEOC has

the authority to bring an independent action, even if

it is based on the same facts or charges as a pre-

viously instituted private Title VII suit. See EEOC

v. North Hills Passavant Hospital, 544 F.2d 664,

672 (8d Cir. 1976). In light of the Supreme Court’s

holding in Occidental Life Insurance Co. v. EEOC,

432 U.S. 855 (1977), that EEOC actions are not

subject to any statute of limitations, intervention or

independent action by the EEOC with respect to the

private litigation under way against Horne’s remains

a realistic possibility. The fact that private litiga-

tion is pending therefore provides no grounds for

denying enforcement of the EEOC investigative

subpoena. ,

Plaintiff’s final argument is that enforcement of

the subpoena should be denied on grounds of laches.

It is the law of this Judicial Circuit that laches will

not bar enforcement of an EEOC investigative sub-

poena “when neither prejudice to the employer nor

misconduct by the agency has been established.”

EEOC v. South Carolina National Bank, 562 F.2d

829, 333 (4th Cir. 1977). Accord, EEOC v. Exchange

Security Bank, 529 F.2d 1214, 1216-17 (5th Cir.

1976). Plaintiff alleges both prejudice and agency

misconduct, but its arguments must fail.

30a

Regarding prejudice, plaintiff’s position is that be-

cause the EEOC delayed in seeking enforcement of

its subpoena, Horne’s has been forced to defend simul-

taneously against the private litigation and the EEOC

enforcement action for many months. Since the

EEOC has the right to continue its investigative ef-

forts after private litigation has been initiated, how-

ever, see EEOC v. North Hills Passavant Hospital,

supra, the alleged prejudice results not from the

EEOC’s delay in seeking enforcement, but rather

from the extent of the EEOC’s investigative author-

ity under Title VII. Such “prejudice” is not grounds

for this Court to deny enforcement of an EEOC

subpoena.

Regarding agency misconduct, plaintiff notes that

the EEOC, upon bringing its enforcement action in

the United States District Court in Pittsburgh, failed

to inform that court that it was already defending

a related action pending in this Court. Moreover,

plaintiff points out that although the EEOC urged

this Court to dismiss Associated’s action for lack of

subject matter jurisdiction on grounds that the Com-

mission had not yet moved to enforce its subpoena,

the EEOC failed to notify this Court when the en-

forcement action was filed in Pittsburgh. In the same

vein, plaintiff urges that the eleven month delay be-

tween the filing of Associated’s action in this Court

and the filing of the EEOC’s enforcement action in

Pittsburgh was motivated by the Commission’s desire

to gain a tactical advantage in its motion to dismiss

Associated’s pending action in this Court. Finally,

3la

plaintiff cites certain procedural irregularities in the

issuance of the subpoena, including the lack of a

quorum in reviewing the Compliance Director’s de-

termination, a matter“which the Court has already

dismissed as immaterial. While the Court would

characterize the procedure of the Commission in issu-

ing and enforcing this subpoena as unusual, the Court

is not satisfied that such procedure sinks to the level

of “misconduct” warranting denial of enforcement

of an EEOC subpoena.

As plaintiff has established neither prejudice nor

misconduct to the satisfaction of the Court, the

EKEOC’s application for enforcement of its subpoena

duces tecum will be granted. Disclosure of the infor-

mation obtained via the subpoena will, of course, be

limited by the Court’s decision regarding §§ 706(b)

and 709(e) of Title VII.

III.

Finally, the Court must address plaintiff’s request

for an award of reasonable counsel fees and other

litigation costs in connection with its defense against

the EEOC’s subpoena enforcement action. Under

§ 706(k) of Title VII, such fees can properly be

awarded only to a “prevailing party”. 42 U.S.C.

§ 2000e-5(k). Since plaintiff has not prevailed in its

efforts to deny enforcement of the subpoena, this

Court is without authority to award attorney’s fees

as requested.

32a

IV.

To summarize the Court’s holdings:

(1) The EEOC’s application to enforce its investi-

gative subpoena duces tecum will be granted;

(2) The EEOC is prohibited from disclosing the

information so obtained to any charging party, and

any EEOC rules and regulations to the contrary are

invalid; and

(3) Plaintiff’s request for attorney’s fees will be

denied.

An appropriate order will issue.

/s/ Robert R. Merhige, Jr.

ROBERT R. MERHIGE, JR.

United States District Judge

Date: Jul 18 1978

33a:

APPENDIX E

KEOC COMPLIANCE MANUAL

SECTION 838

DISCLOSURE OF INFORMATION

IN CASE FILES

83.1 General—Section 709(e) of Title VII makes it

unlawful for any employee of the Commission to

make public information obtained by the Commis-

sion pursuant to its general authority to investigate

charges of discrimination prior to the institution of

any proceeding under Title VII. The Fifth Circuit

Court of Appeals has held (Kessler v. EEOC 472

F.2d 1147 (5th Cir. 1973) that granting access to

such information to charging parties or their attor-

neys prior to the institution of a proceeding under

Title VII is not “making public” within the meaning

of that term as used in Section 709(e).

83.2 Hzxuceptions

(a) Disclosure of Information in Response to

Subpoenas, Demands or Order of Courts or Other

Authorities—The procedures and policies of this sec-

tion do not apply to disclosures of information from

case files in response to subpoenas, demands or or-

ders of courts or other authorities. The procedures

in subpart B of the Commission’s Regulations on

Availability of Records (29 CFR 1610.30 through

1610.36) are to be followed in these circumstances.

84a

(b) Disclosure of Information When the Com-

mission is a Party to Litigation—Once a case file has

been referred to Office of General Counsel to be used

in litigation to which the Commission is a party or

in any other case where the Commission is a party to

litigation, the Office of General Counsel will control

disclosures of information and all persons requesting

disclosure from District Offices or Office of Systemic

Programs (OSP) will be referred to the Office of

General Counsel as provided in Section 1610.34 of

the Commission Regulations.

to Representatives of Interested Federal, State or

Local Authorities—The procedures and policies of

this section do not apply to disclosures of information

in case files to representatives of interested Federal,

State or local agencies. Such disclosures are to be

made as appropriate and necessary to carrying out

the Commission’s responsibilities under the law in

secordance with Section 709(b) of Title VII and Sec-

tion 1601.22 of the Commission’s Procedural Regu-

lations.

83.3 Conditions Precedent to Discloswre—Informa-

tion in case files may be disclosed on request to the

persons indicated in 83.5 under the following condi-

tions:

(a) In Connection With Pending or Contem-

plated Litigation—Information in case files may be

disclosed provided that the request is made for the

35a

purpose of reviewing information in the case file in

connection with pending or contemplated litigation.

Access to the information will not be granted prior

to the expiration of the 180 day period prescribed at

Section 706(f)(1) of Title VII except when the

charge has been dismissed, the aggrieved or charging

party demonstrated a compelling need for access prior

to the expiration of the 180 day period; or if ag-

grieved person has been issued a requested Notice of

Right to Sue. )

(b) Persons Requesting Disclosure Must Agree

not to Make the Information Public—Information in

case files may be disclosed only on the condition that

the person requesting disclosure agree in writing not

to make the information obtained public except in

the normal course of a civil action or other proceed-

ing instituted under Title VII.

83.4 Use of EEOC Form 167, Agreement of Nondis-

closure (See Exhibit 83-A)—Each person to

whom disclosure is made will sign a separate EEOC

Form 167, Agreement of Nondisclosure, check the

appropriate block to indicate identification and pro-

vide a complete address and telephone number. Com-

pletion of EEOC Form 167 will be accepted as evi-

dence that the conditions in 83.3 are agreed to by

the person requesting disclosure. The Commission

representative who signs the EEOC Form 167 on

behalf of the Commission will normally be the Dis-

trict Counsel, District Director or other responsible

professional employee in a supervisory position. Re-

36a

tain the original in the case file. A copy may be

provided to the person requesting disclosure, if re-

quested.

83.5 Persons to Whom Information in Case Files

May be Disclosed—Information in case files

may be disclosed on request, after complying with the

expunction requirements discussed in 83.6, to only

the following persons:

(a) Charging Parties and their attorneys (ex-

cept as otherwise provided in 83.5(c) below) ;

(b) Aggrieved persons in case files involving

Commissioner Charges and their attorneys provided

that such persons have been notified of their status

as aggrieved persons by the Commission;

of an aggrieved person, provided that the aggrieved

person has given written authorization to the person

who filed on his or her behalf to act as the aggrieved

person’s agent for this purpose and their attorneys;

(d) Employees of Commission funded groups

such as the Mexican-American Legal Defense and

Education Fund and Lawyer’s Committee for Civil

Rights Under Law for the purpose of reviewing in-

formation in case files to determine the appropriate-

ness of referral to private attorneys as a service to

charging parties, provided that the conditions in 83.4

and 83.6 have been met and that the Commission

funded group is reviewing the information at the

request of the charging party;

37a

(e) Respondents and their attorneys, provided

that the charging party or aggrieved person 'a. ‘iled

suit under Title VII; and

(f) Any party in a class action complaint, pro-

vided that such party is actually named in the com-

plaint as filed in Federal district court or is actually

named by court order as a class member.

EQUAL EMPLOYMENT GPPORTUNITY COALUISSION

AGREEMENT OF NONDISCLOSURE

Pursuant to Section 7059(1) of Title Vil, the EEOC shall have power to cooperate with private individuals in order to

accomplish the purposes of Title VII.

PERSON REQUESTING DISCLOSURE

AGGRIEVEO PERSON AGGRIEVED PERSON NAMED PARTY

CHARGING PARTY RESPONOENT ON WHOSE BEWALF IN COMMISSIONER IN CLASS ACTION

CHARGE IS FILED CHARGE

ATTORNEY REPRESENTING

AGGRIEVED PERSON ON WHOSE AGGRIEVED PERSON IN NAMED PARTY

qr) cP CJ RESPONDENT BEMALF CHARGE IS FILED t_]} COMMISSIONER CHARGE IN CLASS ACTION

CASE CHARGE NUMBER OF FILE(S; TO BE DISCLOSEO

YPB4-1151 and YPB4-1152

STATEMENT

1 John V. Evans , request cisclosure of Commission case file(s) in connec-

(Typed rame)

tion with contemplated or pending litigation. [T agree that the information disclosed to me will not be made

public or used except in the normal course of a civil action.or other proceeding instituted under Title VI

involving such information.

In witness whereof, thie agreement ie entered into as of the Sth day of _ May 19_75,

by the Equal Employment Opportunity Commission representative named beiow and the person requesting

disclosure.

hp 4p

Y Po equesting disclosure (Signature and telephone number/area code)

Lopez, Evan and Fenwick, 1802 Dawn St., Point Barrow, Alaska 99999

Complete address

ane Jgmes, District Counsel, Point Barrow District Office

Vv EEOC representative (Signature and ritle)

EEOC usy ms 167

Exhibit 83-A

egE

39a

83.6 Expunction of Confidential Material From Case

Files Prior to Disclosure

(a) General—Expunction of confidential ma-

terial pursuant to this section will be strictly super-

vised by the District Counsel or Litigation Enforce-

ment Division staff in OSP, the District Director,

Director of the Office of Systemic Programs or an-

other responsible professional employee in the ab-

sence or non-availability of an attorney or the Dis-

trict Director. Supervision of expunction will not be

further sub-delegated to non-professionals.

(b) Statements and Identities of Witnesses

Promised Anonymity—Remove any information con-

cerning the identities of and statements by witnesses

who have been promised anonymity by a Commission

representative during the course of investigation or

conciliation. The statements of such witnesses are

to be clearly marked by the Commission representa-

tive who promised anonymity by placing the words

“Confidential Witness—Do Not Disclose this State-

ment” at the top and bottom of each page of each

statement. The confidential witness’s name is to be

followed by the words “Confidential Witness’ when

used on the index to tabs in the case file. The name

is to be obscured and the index photocopied so that

only the words “Confidential Witness’ appears on the

index provided to persons requesting disclosure. A

similar procedure is to be followed each place the

confidential witness’s name or information obtained

from the witness appears in the case file.

40a

Remove the review sheet covering Commission Decis-

ions before disclosure because this review sheet re-

cords information concerning intra-governmental ad-

visory and deliberative communications.

(d) Intra-Agency and Inter-Agency Memo-

randa—Remove the Investigator’s Memorandum. Re-

move all memoranda, notes and other documents pre-

pared by Commission attorneys or received from other

governmental agencies which contain recommenda-

tions or mental impressions as to strategy for settling

the case or litigation. Remove all memoranda or

notes from Regional Office of the General Counsel,

from Office of General Counsel and from the Depart-

ment of Justice.

(e) Any Data on Other Respondents—Remove

all data naming other respondents which may be

contained in the case file. The names of other re-

spondents usually will be contained on EEOC Form

155, if charging party has filed charges against other

respondents or on deferral correspondence which

sometimes includes lists of charges deferred. The

name of other respondents is to be obscured from

such documents before disclosure.

(f) Conciliation Materials—Remove informa-

tion in the case file which concerns the Commission’s

attempts to settle the charge by the informal methods

of conference, conciliation and persuasion but see

also Section 1601.26(b) of the Commission’s Pro-

cedural Regulations which provides that factual in-

formation obtained by the Commission during the

4la

course of such informal endeavors may be disclosed

provided that the factual information was otherwise

obtainable by the Commission under its authority in

Section 709 of Title VII.

Materials which must be removed include:

KEOC Form 134, Conciliation Case Analysis; EEOC

Form 159, Log of Investigative/Settlement Actions,

EEOC Form 180, Conciliation Benefits; Commission,

Charging Party and Respondent proposals and counter

proposals (and all correspondence or other documents

which contain information customarily contained in

the items cited) and any statement by any party

which could be construed as an admission against

interest. EEOC Form 153, Invitation to Participate

in Settlement Discussions, will be disclosed. If in

doubt as to whether or not the factual information

obtained during informal endeavors to settle the

charge is obtainable under the Commission’s investi-

gatory powers, remove the information.

(g) Information Obtained From OFCCP or

Contract Compliance Agencies Under the EEOC/

OFCCP Memorandum of Understanding—All infor-

mation obtained from OFCCP or any of its constit-

uent contract compliance agencies pursuant to the

Memorandum of Understanding, paragraph 5, will be

removed. (See also 28-13 and 83.7(b)).

83.7 Scope of Disclosure Permitted

(a) Employer Information Reports (EEO-1)

or other Reports Prescribed by the Commission Pur-

suant to Section 709(c)—All reports required by the

42a

Commission from respondents covered by Title VII

such as Employer Information Report (EEOQO-1, State

and Local Government Information Report (EEO-4) )

will be disclosed if available in the District Office or

Office of Systemic Programs notwithstanding the fact

that these reports were not actually in the charging

party’s case file.

(b) Information in Case Files Obtained From

OFCCP or Contract Compliance Agencies Under the

EEOC/OFCCP Memorandum of Understanding—

Paragraph 5 of the Memorandum of Understanding

between EEOC and OFCCP signed September 11,

1974 provides as follows:

“All requests by third parties for the dis-

closure of information shall be referred

to the agency which initially compiled or

collected the information.”

All information obtained from OFCCP or its con-

stituent contract compliance agencies pursuant to this

agreement will not be disclosed. Persons, as defined

under Section 83.5, who are entitled to disclosure

under Section 83.3 will be informed that the OFCCP

material in the file can be requested directly from the

Office of Federal Contract Compliance Programs and

will be provided with page numbers or other identify-

ing information to aid in making such requests. Re-

quests for information by any persons made under the

Freedom of Information Act and not under Section

83 will be referred to the agency which initially com-

piled or collected the information in accordance with

Section 1610.6 of the Commission regulations and

43a

the EEOC Order 151, Disclosure of Information Un-

der the Freedom of Information Act (but also see

83.2(c) ).

spondent

(1) General—The Commission’s policy is

to cooperate with private Title VII litigants and to

lend appropriate assistance in framing proper court

complaints by allowing, when requested, access to in-

formation in other case files involving the same re-

spondent which are available in the same District

Office or Office of Systemic Programs, provided that

the information in the other case files is relevant or

material to the private litigant’s case.

(2) Determining When Information in

Other Case Files is Relevant or Material—Informa-

tion in other case files is relevant or material when

other case files contain charges, investigations or de-

terminations involving the same basis (e.g. sex, re-

ligion, national origin, race) with limited exceptions

such as when the private litigant’s case alleged dis-

crimination in promotion against females and the

other case file involved a male’s claim that he was not

hired because of respondent’s policy of not hiring

long haired males. Other case files may be relevant

or material if they involve a different basis only when

the treatment afforded one protected class is probative

of treatment afforded the private litigant’s class (e.g.

systemic discrimination against Spanish Surnamed

Americans is often probative as to treatment accorded

Blacks and vice versa).

44a

(3) Safeguard the Identity of Person on

Whose Behalf Charge was Made When Disclosing

Other Case Files Involving the Same Respondent—

Section 1601.7(a) of the Commission’s Procedural

Regulations provides that the Commission shall safe-

guard and keep confidential the name and address

of any person on whose behalf a charge is made,

where the person requests that his or her identity re-

main confidential. When disclosing information in

other case files involving the same respondent, remove

any material which would reveal the name or address

of any person on whose behalf a charge was made

including EEOC Form 151, Third Party Certifica-

tion of Charge, (or any other document serving the

same purpose), the affidavit required by 8.3(c) in

which the person on whose behalf a charge is made

acknowledges aggrievement or any other documents

which contain the name or address of the person on

whose behalf a charge was made. When constructing

the case file, a procedure similar to that described in

83.6(b) is to be followed, i.e. clearly mark the index

tabs in the case file and mark each document which

contains information which the Commission is re-

quired to safeguard pursuant Section 1601.7(a) of

the Commission’s Procedural Regulations.

(4) Safeguard The Identities of Charging

Parties When Disclosing Other Case Files Involving

the Same Respondent—When disclosing information

in other case files involving the same respondent, re-

move any materials which would reveal the name or

45a

address (or other identifying details) of any charg-

ing party in the other case files.

(5) District Director or Director, OSP,

Decision as to Relevant or Material is Final—Because

the policy of allowing access to information in other

ease files is discretionary on the part of the Commis-

sion, the decision of the District Director or Director,

OSP, is final when made and may not be appealed.

However, any District Director or Director, OSP,

may reconsider on his or her own motion any decision

made as to relevancy.

83.8 Collection and Disposition of Fees For Copy-

ing—Fees for photocopying will be assesed or

waived in accordance with the schedule of fees con-

tained at Section 1610.15 of the Commission’s Regula-

tions. Collection and disposition of fees will be in

accordance with EEOC Order 471. Persons granted

access to information in case files will not normally

be permitted to remove case files from Commission

premises except that the District Director or Direc-

tor, OSP, may allow a file to be copied away from

Commission premises if unusual circumstances war-

rant and proper safeguards are observed to pre-

vent loss or mutiliation of the file. District Office or

Office of Systemic Programs personnel will photo-

copy materials on request; however, if a request for

photocopying involves unusual problems or reproduc-

tion or handling, District Director or Director, OSP,

may require persons requesting copies to make spe-

cial arrangements. Persons granted access are to be

46a

encouraged to minimize the amount of photocopying

by Commission employees by first carefully inspecting

the information in the case file and making a judici-

ous selection of the material to be photocopied.

83.9 Copy of This Section Will be Provided to Per-

sons Who Sign EEOC Form 167—A photocopy

of this section will be provided to persons who sign an

EEOC Form 167 at no cost.

* U. S. GOVERNMENT PRINTING OFFICE; 1979 307747 170

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.