Sears, Roebuck & Co. v. E.E.O.C., s. 77-1822

• Citation: 581 F.2d 941,189 U.S.App.D.C. 163
• Decision Date: 26 July 1978
• Docket Number: 77-1995 and 77-1996,Nos. 77-1822,s. 77-1822
• Parties: 17 Fair Empl.Prac.Cas. 897, 47 A.L.R.Fed. 457, 16 Empl. Prac. Dec. P 8348, 189 U.S.App.D.C. 163 SEARS, ROEBUCK AND COMPANY, Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al. SEARS, ROEBUCK AND COMPANY v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al., Appellants (two cases).
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 941

581 F.2d 941

17 Fair Empl.Prac.Cas. 897, 47 A.L.R.Fed. 457,

16 Empl. Prac. Dec. P 8348, 189 U.S.App.D.C. 163

SEARS, ROEBUCK AND COMPANY, Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al.

SEARS, ROEBUCK AND COMPANY v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al., Appellants

(two cases).

Nos. 77-1822, 77-1995 and 77-1996.

United States Court of Appeals, District of Columbia Circuit.

Argued March 31, 1978.

Decided June 9, 1978.

As Amended July 26, 1978.

Rehearing Denied July 26, 1978.

Appeals from the United States District Court for the District of Columbia. (D.C. Civil Nos. 77-0393 and 77-0924).

S. Richard Pincus, Chicago, Ill., for appellant in No. 77-1822 and cross appellee in Nos. 77-1995 and 77-1996.

J. Ramon V. Gomez, Atty., E.E.O.C., Washington, D. C., with whom Beatrice Rosenberg, Asst. Gen. Counsel, and Raj K Gupta, Atty., E.E.O.C., Washington, D. C., were on brief, for appellee in No. 77-1822 and cross appellants in Nos. 77-1995 and 77-1996.

Barbara Kaye Besser, Cleveland, Ohio, Margaret Beller and Charlotte Hallam, Washington, D. C., were on brief, for intervenor in No. 77-1822.

Robert E. Williams and Frank C. Morris, Jr., Washington, D. C., were on brief, for amicus curiae, The Equal Employment Advisory Council, urging reversal.

Victor H. Kramer, Charles E. Hill and Douglas L. Parker, Washington, D. C., were on brief, for amicus curiae, Institute for Public Interest Representation, urging affirmance of the District Court's holding that the provisions of 18 U.S.C. § 1905 are inapplicable to disclosures of information required by Title VII of the Civil Rights Act of 1964.

Before LUMBARD, ^* Senior Circuit Judge for the Second Circuit, and MacKINNON and WILKEY, Circuit Judges.

Opinion for the court filed by LUMBARD, Senior Circuit Judge.

LUMBARD, Senior Circuit Judge:

In these appeals we address the question whether the Equal Employment Opportunity Commission (EEOC) may furnish to employees proceeding as private litigants under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to § 2000e-17, information regarding employers whom the EEOC is investigating. The district court ruled that the EEOC could give to certain individual employees data accumulated pursuant to the EEOC's investigatory powers; the court also ruled, however, that the Commission is statutorily prohibited from giving to such employees information obtained by the EEOC during settlement negotiations with employers.

Sears, Roebuck & Co. (Sears), a nationwide retailer, appeals from the judgment of the district court insofar as it allowed the EEOC to give some information in its files concerning Sears to employees who have brought suit against Sears. The EEOC cross appeals from so much of the judgment as forbad release of information obtained during its negotiations with Sears. Finding that Title VII's prohibition on "making public" information secured by the EEOC during its investigations extends to any disclosure to persons outside the government, we reverse that part of the district court's judgment that allowed the EEOC to give employees of Sears data from EEOC files concerning Sears; in all other respects we affirm the judgment of the district court.

I. FACTS

A motivating factor behind the Civil Rights Act of 1964 was Congress' concern over discrimination in employment as a cause of unemployment of minority members of the work force. See Blumrosen, The Duty of Fair Recruitment Under the Civil Rights Act of 1964, 22 Rutgers L.Rev. 465 (1968). Thus, as part of the Act, Congress enacted Title VII, 42 U.S.C. § 2000e-1 to § 2000e-17, which makes illegal certain "unfair employment practices" of employers, including the refusal to hire or the discharge of ". . . any individual . . . because of the individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).

To facilitate compliance with Title VII's strictures, Congress created the EEOC; primary enforcement power was left to aggrieved employees, however. Many observers saw piecemeal enforcement by individuals to be an inadequate device for achieving the national goals of Title VII, See Sape & Hart, Title VI Reconsidered: The Equal Employment Opportunity Act of 1972, 40 Geo.Wash.L.Rev. 824 (1972), and so in 1972 Congress amended the statute to give the EEOC broad authority to bring enforcement actions in federal court, should negotiations fail to result in comprehensive settlements of Title VII violations by employers. See 42 U.S.C. § 2000e-5(b), (f)(1); Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); H. Friendly, Federal Jurisdiction: A General View 82-87 (1972). Indeed, to ensure that Title VII violations would be remedied whenever possible through a conciliation agreement reaching all employees of a given employer, Congress prohibited individual employees from bringing suit on their own behalf until after the EEOC has had an opportunity to investigate and settle charges of employment discrimination with the employer. See 42 U.S.C. § 2000e-5; Cf. Patterson v. American Tobacco Co., 535 F.2d 257, 272 (4th Cir. 1976). Thus, Title VII provides that once a charge of an unfair employment practice is filed with the EEOC by either a private party or a commissioner, the Commission must investigate the charge to determine whether there is reasonable cause to believe that the employer has engaged in illegal employment discrimination. If the EEOC finds reasonable cause to believe there has been a violation of Title VII, it must enter into conciliation discussions with the employer in an attempt to remedy the situation. ¹ If these discussions fail, the EEOC may file suit against the employer in the district court. Furthermore, parties aggrieved by alleged Title VII violations may bring suit in federal court 180 days after filing charges with the EEOC, whether or not the EEOC has acted within that time.

To enable the EEOC to carry out its statutory role of negotiating settlements with employers, Congress gave the Commission authority to obtain certain information from employers against whom employment discrimination charges have been filed, and to enter into discussions with employers concerning such charges. The two statutory provisions at issue here, §§ 706(b) and 709(e) of Title VII, prohibit the EEOC from "making public" any information the EEOC receives as a result of its negotiations with employers or its request for information from employers.

On August 30, 1973, then-EEOC Chairman William H. Brown, III, acting under 42 U.S.C. § 2000e-5(b), filed with the Commission a charge against Sears, claiming that the company had engaged in unfair employment practices. Specifically, Brown alleged that Sears had discriminated against job applicants and employees across the nation on the basis of their race, sex, and national origin.

The Commission consolidated with Commissioner Brown's national charge the several hundred pending charges that had been filed by private individuals and organizations in various parts of the country regarding numerous instances of alleged employment discrimination by Sears. ² This consolidation of complaints is consistent with the policy of the Commission to proceed against nationwide employers, whenever possible, by use of commissioners' complaints that potentially cover all those injured by the employers' alleged discriminatory hiring activities.

The consolidated EEOC proceeding against Sears was referred to the Commission's National Programs Division, now known as the Special Investigations and Conciliation Division, which requested, pursuant to 42 U.S.C. § 2000e-8(a), information from Sears concerning the company's hiring policies and activities. The information provided by Sears, dating in some instances from 1964, pertained to the operation of 168 of Sears' approximately 3,800 retail facilities, and revealed the sexual, racial, and ethnic makeup of approximately 30% Of Sears' work-force in various job categories, both hourly and salaried. Sears also gave data to the EEOC concerning recruitment, selection, evaluation, promotion, transfer training, and compensation of Sears' employees, and details of the company's attempts to hire women and members of minority groups. Much of the data given to the EEOC had never been given out publicly by Sears.

Although Title VII expressly requires conciliation discussions between the EEOC and an employer against whom charges have been filed only after the Commission has determined there is reasonable cause to believe that the employer has engaged in unfair employment practices, See 42 U.S.C. § 2000e-5(b), it appears that the Commission regularly engages in discussions (known as "predetermination settlement discussions") prior to making such a determination, see 29 C.F.R. § 1601.19a (1977); this was done in the proceeding against Sears. Thus, on November 11, 1975, the EEOC began settlement discussions with Sears. As part of the offer and counteroffers made during some ten months of negotiations, Sears compiled and gave to the EEOC detailed statistical studies covering all of its approximately 420,000 employees. ³ The information concerning Sears' numerous employment tasks was organized into seven "Affirmative Action Job Categories," in an attempt to define the present status of Sears' equal employment endeavors, to establish specific goals for the employer, and to devise the basis for an agreement regarding back pay. It is undisputed that, but for its attempts to reach an agreement with the EEOC, Sears would not have compiled these statistical analyses. Also, as part of its negotiations with the Commission, Sears continued to supply up-to-date information concerning the company's affirmative action program.

On May 21, 1975, more than six months after the inception of the Sears settlement discussions, the Commission promulgated regulations specifying that "charging parties" (that is, private parties who have filed...