Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78 C 1257 - John Powers Crowley, Judge.
Before Pell and Bauer, Circuit Judges, and Harper, Senior District judge.*fn*
In response to a wide-ranging charge by Commissioner Ethel Bent Walsh, the Equal Employment Opportunity Commission began a national investigation into possible discrimination in employment by Burlington Northern, Inc. During the course of the patulous investigation, Burlington has voluntarily cooperated with the Commission by answering numerous interrogatories and providing substantial quantities of documents and records.*fn1 The national investigation has been consolidated with the Commission's processing of approximately 60 individual discrimination charges against Burlington. Burlington has also voluntarily provided materials dealing specifically with at least some of these charges.
After the Commission's investigation began, William McBride and William Butler, two black Burlington employees, requested and obtained right-to-sue letters from the Commission (See 42 U.S.C. § 2000e-5(f)) and filed a private action on behalf of a nationwide class of black employees of and applicants for employment with Burlington.*fn2 A former employee, Roy Hill, has filed an action on behalf of a class located in the Northern District of Illinois,*fn3 and DuBois Gilliam filed a complaint originally purporting to represent a class of black Burlington employees in Nebraska and Iowa, but which he now is seeking to amend to expand the class to national scope.*fn4
A number of individual charging parties have requested access to the Commission's national investigatory file on Burlington. Given the Commission's policy of cooperating with private litigants by providing them relevant information (broadly defined) subject to a promise not to make the information public, See EEOC Compliance Manual §§ 83.7(c), 83.3(b), 83.4, 83.5, it is assumed that the Commission will honor these requests if allowed to do so. This case arises from a concrete instance, however, in which no assumptions as to the future are necessary. McBride and Butler have subpoenaed the Commission to produce all documents in the Burlington investigation file, and the Commission has advised Burlington that it will comply with the subpoena. Burlington filed this action to enjoin release of the information in the Commission's investigation file. The district court denied all relief, and Burlington appealed.
The issue before us may be simply put: to what degree may the Commission release information gathered in a national investigation of an employer's practices to an individual prosecuting a private class action attacking those practices? Section 709 of Title VII, 42 U.S.C. § 2000e-8, gives substantial investigatory powers to the Commission, and also provides the limit to its power to disclose the information gathered in the investigation. Subsection (e) states:
It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the 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.
The Commission's position, expressed in its Compliance Manual (See sections cited above), in 29 C.F.R. § 1610.17(d), and in its brief and argument here, is that individual charging parties are not members of the "public" within the meaning of § 709(e), and that investigative materials may thus be disclosed to them and their attorneys either before or after litigation under Title VII is begun. Burlington argues that charging parties are members of the public to whom nothing may be disclosed before litigation is begun, and that even after a private action is filed, notwithstanding that the charging parties purport to represent a class, the action itself only "involves such information" as is directly relevant to discrimination against the individual charging parties. It insists, therefore, that nothing more may be disclosed. Burlington also argues that class actions, unlike private individual actions, should not be permitted while pattern and practice proceedings continue to pend before the Commission.
This case, of course, directly involves only the Commission's plans to disclose investigative material to private litigants who have filed actions under Title VII. If the Commission is correct, however, that charging parties are not members of the public, it would be free to disclose the material to them without regard to whether or not litigation had begun. Accordingly, we address this argument first, and reject it.
In our opinion the statutory scheme of enforcing Title VII is entirely inconsistent with the Commission's interpretation of § 709(e). Under the Civil Rights Act of 1964, the Commission had power only to investigate and attempt to conciliate employment discrimination charges, 42 U.S.C. § 2000e-5(a) (1970), and coercive enforcement could only be achieved by a private suit initiated by a charging party, 42 U.S.C. § 2000e-5(e) (1970). By 1972, Congress had become dissatisfied with the effectiveness of this enforcement scheme. See H.R.Rep.No.92-238 (1971), reprinted in 2 U.S.Code Cong'l & Admin.News, pp. 2137, 2139-41, 2144 (1972). The Equal Employment Opportunity Act of 1972 amended Title VII of the Civil Rights Act to establish "an integrated, multistep enforcement procedure culminating in the EEOC's authority to bring a civil action in a federal court." Occidental Life Insurance Company of California v. Equal Employment Opportunity Commission, 432 U.S. 355, 359, 97 S. Ct. 2447, 2451, 53 L. Ed. 2d 402 (1977).
The right of an individual charging party to file a private action was preserved to allow escape from the "administrative quagmire" which could develop if a case could not promptly be processed by the Commission. See H.R.Rep.No.92-238, Supra, 2 U.S.Code Cong'l & Admin.News at 2147-48; Occidental Life, supra at 364-66, 97 S. Ct. 2447. But there can be no doubt that the enforcement scheme enacted with the 1972 amendments lodged the primary responsibility for insuring equal employment opportunity with the Commission.*fn5 Because of the Commission's accumulated experience and expertise and its ability, through conciliation and pattern and practice litigation, to achieve results that will benefit an employer's entire workforce, "(t)he Commission has the basic responsibility to achieve the objectives of Title VII." H.R.Rep.No.92-238, Supra, 2 U.S.Code Cong'l & Admin.News at 2149. A section-by-section analysis of the amendments that was presented to the Senate before its final vote on the amending bill, 118 Cong.Rec. 4942 (1972), and that was put before both the Senate, 118 Cong.Rec. 7165, 7168 (1972), and the House of Representatives, 118 Cong.Rec. 7563, 7565 (1972), in conjunction with the Conference Report on the amendments, which analysis the Supreme Court has said "provides the final and conclusive confirmation of the meaning" of the private remedy provisions of the 1972 Act, Occidental Life, supra at 365, 97 S. Ct. at 2454, makes the primacy of the Commission's enforcement powers quite clear: "It is hoped that recourse to the private lawsuit will be the exception and not the rule, and that the vast majority of complaints will be handled through the offices of the EEOC." See Sears, Roebuck and Company v. Equal Employment Opportunity Commission, 581 F.2d 941 (1978), slip op. at 4, 11.
We think it plain, and the Commission does not disagree, that the effect, and indeed the purpose, of disclosing investigative material to charging parties as if they were not members of the public would be to encourage the filing of private lawsuits. It is also obvious that this effect will necessarily undercut the preferred enforcement scheme of comprehensive negotiation and settlement, Sears, Roebuck, supra at 581 F.2d at 945-946; and See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 461, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975), by diffusing the energies of the employer and the EEOC and by injecting possibly unnecessary adversariness into the process of dealing with employment practices. Moreover, the disclosure policy, which the Commission argues is appropriate, will almost certainly interfere with its ability to obtain voluntary cooperation with its investigative efforts. If employers know that whatever they provide to the Commission will be turned over to litigious charging parties, they will have an incentive to force the Commission to go to court under Section 709(c) of the Act to obtain the information sought, if only to obtain an enforceable court order that the information thus disclosed will not be disclosed further. Sears, Roebuck, supra 189 U.S.App.D.C. at -- - - 581 F.2d at 946-947.*fn6 We find absolutely no reason to believe that the Congress intended, in enacting § 709(e), to undercut and hinder the primary means of enforcing equal employment opportunity merely to facilitate the filing of private litigation, which as we have said, was contemplated as a back-up remedy.*fn7 Accordingly, we hold, as did the District of Columbia Circuit in Sears, Roebuck, that individual charging parties are members of the public under § 709(e) to whom investigatory materials may not be disclosed prior to the institution of judicial proceedings.
We recognize that in H. Kessler & Company v. EEOC, 472 F.2d 1147 (5th Cir. 1973) (en banc), Cert. denied, 412 U.S. 939, 93 S. Ct. 2774, 37 L. Ed. 2d 398, the Fifth Circuit expressed the view that disclosure to an individual charging party of the contents of his individual investigation file was not a "public" disclosure. Kessler is subject to being distinguished on the basis of the limited disclosure involved there,*fn8 although it would seem, conceptually that the definition of "public" ought to turn on who is to receive the information rather than how much may appropriately be given the recipient. We are constrained respectfully to disagree with Kessler, as did Sears, Roebuck, because Kessler gave no consideration to the weighty problems of undercutting the Commission's primary role in Title VII enforcement, and we think the decision's underlying concerns about the difficulties of obtaining counsel for a private action have been substantially alleviated by the 1972 Act. See 42 U.S.C. §§ 2000e-5(f)(1), 2000e-5(k); Sears, Roebuck, supra, -- - U.S.App.D.C. at -- -, -- - F.2d at -- .
Once a Title VII proceeding "involving (investigative) information" has been instituted, § 709(e)"s prohibition against making the information "public in any manner whatever" ceases. McBride and Butler have, of course, filed such a suit, and Burlington agrees that they are entitled to the investigative material to the degree it is directly relevant to their individual charges of discrimination.*fn9 The remaining question is whether, because they filed a class action suit, they are entitled to information not ...