Rogers v. Equal Employment Opportunity Com'n

• Decision Date: 31 January 1972
• Docket Number: No. 30651.,30651.
• Citation: 454 F.2d 234
• Parties: Dr. N. Jay ROGERS et al., Petitioners-Appellees, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

454 F.2d 234 (1971)

Dr. N. Jay ROGERS et al., Petitioners-Appellees, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Respondent-Appellant.

No. 30651.

United States Court of Appeals, Fifth Circuit.

December 21, 1971.

Rehearing and Rehearing Denied January 31, 1972.

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Marian Halley, Atty., Stanley P. Hebert, Gen. Counsel, E. E. O. C., Washington, D. C., Julia P. Cooper, Gen. Atty., Robert Nicholas, Asst. U. S. Atty., Beaumont, Tex., David Copus, E. E. O. C., Washington, D. C., for respondent-appellant.

Robert Q. Keith, C. M. Bradford, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, Tex., for petitioners-appellees.

Before GOLDBERG, GODBOLD and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied January 31, 1972.

GOLDBERG, Circuit Judge:

This Equal Employment Opportunity case comes to us in a preliminary and undefinitive posture. We are asked to limit at the threshold the investigative scope of the Equal Employment Opportunity Commission on the ground that the Commission seeks evidence of a discriminatory employment practice which is not proscribed by Title VII of the Civil Rights Act of 1964.¹ Judge Godbold, for reasons best expressed in his concurring opinion, permits the discovery. Though my justiciable interpretation of the acts charged differs from that of my Brother Godbold, I also sanction the discovery, because at this juncture I cannot be certain that the acts charged are not within the Act's proscriptions.

On April 11, 1969, Mrs. Josephine Chavez filed with the respondent EEOC, pursuant to Section 706(a) of Title VII, 42 U.S.C.A. § 2000e-5(a), a verified charge of employment discrimination against petitioners S. J. and N. Jay Rogers, who are optometrists doing business as "Texas State Optical." The charge stated in full:

"The above company has discriminated against me because of my national origin Spanish surnamed American by:

a. Terminated me from my job without a reason. I was the only Spanish surnamed American employed with seven Caucasian females who abused me. The manager told me my work was allright sic but he had to let me go because of friction.

b. segregating the patients."

In May of 1969 the Commission commenced investigation of the charge, serving a copy of it on petitioners. Frustrated by unsuccessful efforts to secure voluntary production of materials considered relevant to its investigation, the Commission invoked its statutory authority and issued upon the petitioners a Demand for Access to Evidence.² In addition to information concerning Mrs. Chavez and other of the petitioners' employees, the Demand sought production of data pertaining to or contained in the patient applications which petitioners maintain in the course of their business. Within the twenty-day statutory period,³ petitioners filed in a federal district court a petition to set aside or modify the Demand, and the EEOC timely answered and cross-petitioned for enforcement. The district court granted partial enforcement of the Demand, denying the Commission's request for access to patient applications. Rogers v. EEOC, E. D.Tex.1970, 316 F.Supp. 422. The EEOC appeals the partial enforcement order⁴ and contends that the district court should have granted the Commission access to these applications. The majority of this court is in agreement that the Demand for Access to Evidence against petitioners should be enforced in toto.

Before considering the district court's justifications for refusing enforcement of the Demand, I find it necessary to consider the interpretation which should be accorded Mrs. Chavez's complaint. Neither the district court nor the EEOC interpreted the complainant's charge of "segregating the patients" as alleging that "Mrs. Chavez is required or permitted to attend only to patients of a certain ethnic origin and not to others." Rogers v. EEOC, supra, 316 F.Supp. at 425. Such an interpretation, which Judge Godbold endorses, might very well be reasonable, but it is certainly neither compulsory nor compelling. This case was tried and the trial court's conclusion reached solely on the interpretation of the charge that petitioners discriminate among their clients on the basis of the patient's national origin. This is both a reasonable and a practical interpretation, and I prefer to come to grips with the fundamentals of this case as viewed by the claimant, the learned and distinguished trial judge, the Equal Employment Opportunity Commission, the briefs on appeal, and Judge Roney. Accordingly, for purposes of the merits of this appeal, I will treat the latter portion of Mrs. Chavez's charge, as the district court did, to mean only that petitioners afford their patients different treatment depending on their ethnic origins.

I. Unlawful Employment Practice

On the basis of the above interpretation of the second portion of Mrs. Chavez's charge, the court below denied the Commission's Demand for access to the petitioners' patient applications because the EEOC had failed to show that Mrs. Chavez was a person "aggrieved" by an unlawful employment practice within the meaning of Section 703(a), 42 U.S.C.A. § 2000e-2(a). In the words of the trial court:

". . . Accepting arguendo the Commission\'s contention that if Petitioners in fact `segregated the patients\' then such a practice might be so ofsensive to Mrs. Chavez\'s sensibilities as to make her uncomfortable in her job, there still is no showing that she is `aggrieved\' in the sense contemplated by § 706(a), i. e., by the employer\'s pursuit of an `unlawful employment practice\' within § 703." Rogers v. EEOC, supra, 316 F.Supp. at 425.

I disagree fundamentally with this position. While the district court may have viewed lightly the connection between the petitioners' alleged discrimination against its patients and Mrs. Chavez's sensibilities, I think that the relationship between an employee and his working environment is of such significance as to be entitled to statutory protection.

Section 703(a) (1) of Title VII, 42 U.S.C.A. § 2000e-2(a) (1) provides that it shall be an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." This language evinces a Congressional intention to define discrimination in the broadest possible terms. Congress chose neither to enumerate specific discriminatory practices, nor to elucidate in extenso the parameter of such nefarious activities. Rather, it pursued the path of wisdom by being unconstrictive, knowing that constant change is the order of our day and that the seemingly reasonable practices of the present can easily become the injustices of the morrow. Time was when employment discrimination tended to be viewed as a series of isolated and distinguishable events, manifesting itself, for example, in an employer's practices of hiring, firing, and promoting. But today employment discrimination is a far more complex and pervasive phenomenon, as the nuances and subtleties of discriminatory employment practices are no longer confined to bread and butter issues. As wages and hours of employment take subordinate roles in management-labor relationships, the modern employee makes ever-increasing demands in the nature of intangible fringe benefits. Recognizing the importance of these benefits, we should neither ignore their need for protection, nor blind ourselves to their potential misuse.

We must be acutely conscious of the fact that Title VII of the Civil Rights Act of 1964 should be accorded a liberal interpretation in order to effectuate the purpose of Congress to eliminate the inconvenience, unfairness, and humiliation of ethnic discrimination. Parham v. Southwestern Bell Telephone Co., 8 Cir. 1970, 433 F.2d 421; Green v. McDonnell-Douglas Corp., E.D.Mo.1970, 318 F.Supp. 846; United States v. Medical Soc'y of South Carolina, D.S.C.1969, 298 F.Supp. 145. Furthermore, I regard this broad-gauged innovation legislation as a charter of principles which are to be elucidated and explicated by experience, time, and expertise. Therefore, it is my belief that employees' psychological as well as economic fringes are statutorily entitled to protection from employer abuse, and that the phrase "terms, conditions, or privileges of employment" in Section 703 is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination. I do not wish to be interpreted as holding that an employer's mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee falls within the proscription of Section 703. But by the same token I am simply not willing to hold that a discriminatory atmosphere could under no set of circumstances ever constitute an unlawful employment practice. One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers, and I think Section 703 of Title VII was aimed at the eradication of such noxious practices.

Petitioners urge, nevertheless, that the second portion of Mrs. Chavez's charge could not relate to an unlawful employment practice because it alleges discrimination directed toward petitioners' patients and not toward any employee. Essentially petitioners' contention is that their discriminatory treatment or classification of patients is not a practice directed toward any employee and that because of such discrimination Mrs. Chavez cannot complain that she is treated any differently than any other employee. However, petitioners' eisegesis is not consistent with the interpretation recently accorded Title VII by the Supreme Court. In Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, ...