H. Kessler & Co. v. Equal Employment Opportunity Com'n

• Decision Date: 29 January 1973
• Docket Number: No. 72-1082.,72-1082.
• Citation: 472 F.2d 1147
• Parties: H. KESSLER & COMPANY, Plaintiff-Appellee-Cross Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al., Defendants-Appellants-Cross Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

472 F.2d 1147 (1973)

H. KESSLER & COMPANY, Plaintiff-Appellee-Cross Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al., Defendants-Appellants-Cross Appellees.

No. 72-1082.

United States Court of Appeals, Fifth Circuit.

January 29, 1973.

Joseph Ray Terry, Jr., Regional Attorney, Atlanta Regional Office, EEOC, Atlanta, Ga., John DeJ. Pemberton, Acting Gen. Counsel, David Zugschwerdt, Acting Chief, Trial Section, Julia Cooper, Chief, Appellate Section, Lutz Alexander Prager, EEOC, Washington, D. C., for defendants-appellants.

Cleburne E. Gregory, Jr., Alexander Cocalis, Allen I. Hirsch, Atlanta, Ga., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and TUTTLE, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM, and RONEY, Circuit Judges.

TUTTLE, Circuit Judge:

The court, having been convened en banc and having considered additional briefs, reverses in part the decision of the original panel in this matter, Kessler and Company v. Equal Employment Opportunity Commission, 468 F.2d 25 (C.A.5, 1972).

The precise question presented for en banc review is whether the non-disclosure provisions of the Civil Rights Act of 1964, specifically section 709(e), 42 U.S.C.A. § 2000e-8(e), make it unlawful for the Equal Employment Opportunity Commission, prior to the institution of formal legal proceedings, to disclose to the aggrieved party or his attorney information obtained by the Commission during the course of its administrative investigation of a claim of employment discrimination. The original panel held that the Act prohibited such disclosure, one judge dissenting. We reverse that aspect of the decision but affirm as to the other issues decided by the panel.

Our inquiry is directed to that portion of the Civil Rights Act which outlines the procedures to be followed by the Commission after a claim of discrimination has been filed by a private party. In this limited respect the Act contains three separate prohibitions against public disclosure. Two of these are contained in Section 706(a), 42 U.S.C.A. § 2000e-5(a), which describes the principal functions of the Commission. It provides:

"Whenever it is charged in writing under oath by a person claiming to be aggrieved, or a written charge has been filed by a member of the Commission where he has reasonable cause to believe a violation of this subchapter has occurred (and such charge sets forth the facts upon which it is based) that an employer, employment agency, or labor organization has engaged in an unlawful employment practice, the Commission shall furnish such employer, employment agency, or labor organization (hereinafter referred to as the `respondent\') with a copy of such charge and shall make an investigation of such charge, provided that such charge shall not be made public by the Commission. If the Commission shall determine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such endeavors may be made public by the Commission without the written consent of the parties, or used as evidence in a subsequent proceeding. Any officer or employee of the Commission, who shall make public in any manner whatever any information in violation of this subsection shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or imprisoned not more than one year." (Emphasis added.)

The third prohibition against disclosure is contained in Section 709(e) which provides:

"It shall be unlawful for any officer or employee 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 proceeding under this subchapter involving such information. 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 conviction thereof, shall be fined not more than $1,000 or imprisoned not more than one year." (Emphasis added.)

It is this last provision with which we are directly concerned. The Commission takes the position that neither the charging party nor his attorney is, within the intendment of this statute, a member of the "public" to whom disclosure of "any information obtained by the Commission pursuant to its authority" is prohibited. This position is reflected in the Commission's current regulations which, insofar as relevant, provide as follows:

"Neither a charge, nor information obtained pursuant to section 709(a) of Title VII, nor information obtained from records required to be kept or reports required to be filed pursuant to sections 709(c) and (d) of said Title, shall be made matters of public information by the Commission prior to the institution of any proceedings under this Title involving such charges 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 agencies as may be appropriate or necessary to the carrying out of the Commission\'s functions under the Title, nor to the publication of data derived from such information in a form which does not reveal the identity of the charging party, respondent, or person supplying the information." (Emphasis supplied.) 29 C.F.R. § 1601.20.

The Commission's policy was further explained in a memorandum, dated September 15, 1970, to all Commission field directors and field attorneys by the then General Counsel. The memorandum states:

"The investigator\'s report in a case may be examined by counsel for the charging party after expiration of the statutory period for investigation and conciliation (60 days from the date of filing with the Commission) to determine whether or not, in counsel\'s opinion, the facts justify the commencement of a civil action pursuant to Section 706(e) and, if so, to obtain information relevant to drafting the complaint. Before a report is made available, counsel must agree that it will not be used for any other purpose and that the information contained therein will not be disclosed except to the extent necessitated by filing the complaint." (Emphasis supplied.)

Our task here, of course, is to ascertain whether the regulation and the Commission's stated policy with respect to disclosure are consonant with the statutory requirements. We think that the position taken by the Commission constitutes an accurate assessment of the relevant law.

It is noted at the outset that we are dealing here with a very limited form of disclosure, that is, disclosure only to the parties themselves or their attorneys of information obtained by the Commission during the course of its investigation of a complaint. The question is whether such limited disclosure makes "public" this information, in violation of Section 709(e), supra.

In light of the purpose of the Civil Rights Act, and recognizing the fact that the complaining person is, almost by definition, a person in impecunious circumstances, and bearing in mind the fact that "the importance of the private litigant in the context of Title VII cannot be over-emphasized," Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460, n. 1 (C.A.5, 1970), and bearing in mind further the very limited time that is given to the charging party to file suit after the Commission notifies him that it has been unable to obtain voluntary compliance (30 days), it is obvious that the charging party literally needs all the help he can get in order to procure counsel, convince him that a right of action truly exists with evidence to support it, and prepare and file suit within the statutory period. It is within this context that we must consider whether the charging party himself, or his attorney is, within the meaning of the statute, a member of the "public".

The scant legislative history that is available with respect to this particular portion of the Act appears to support the position expressed by the Commission in its regulation. See Miller v. International Paper Co., 408 F.2d 283 (C.A.5, 1969). Senator Humphrey introduced the compromise amendment which eventually became law. In his statement he undertook to give a gloss to the amendment which would permit such disclosure as is necessary to the carrying out of the Commission's duties under the statute. He said:

"Provisions preserving the confidentiality of Commission procedures have been added to Sections 706(a) and 709(e). Section 706(a) provides that a charge filed with the Commission shall not be made public and provides a criminal penalty for a Commission employee who violates this rule. Section 709(e) prohibits the Commission and its employees from making public information obtained by compulsory process in the course of litigation arising under the title.

"It should be noted that this is a ban on publicizing and not on such disclosure as is necessary to the carrying out of the Commission\'s duties under the statute. Obviously, the proper conduct of an investigation 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 amendment is not intended to hamper Commission investigations or proper cooperation with other State and Federal agencies, but rather is aimed at the making available to the general public of unproven charges." 110 Cong.Rec. 12723. (Emphasis supplied.)

That the non-disclosure provisions of the Act were never intended to apply to the immediate parties is given further substance by the legislative history of the 1972 amendments to Title VII. Though the provisions with which we are here...