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November 13, 1981


The opinion of the court was delivered by: Shadur, District Judge.


Equal Employment Opportunity Commission ("EEOC") sues Chicago Miniature Lamp Works ("CMLW") under Title VII of the Civil Rights Act of 1964 ("Title VII," 42 U.S.C. § 2000e et seq.), claiming that CMLW has failed (a) to recruit, hire and promote Blacks and (b) to promote Hispanics. CMLW has moved for summary judgment. For the reasons stated in this memorandum opinion and order its motion is denied.

On March 9, 1978 Ed Randolph ("Randolph") filed a charge with EEOC alleging that CMLW failed to promote him because of his race (Randolph is a Black). EEOC's November 9, 1978 determination letter found reasonable cause to believe that Randolph's charge was true and additionally:

  that Respondent is discriminating against Blacks as a
  class in hiring and recruiting, and Blacks and
  Hispanics in promotions. Our finding is based on
  statistical data pertaining to population, the
  Respondent's work force, and movement within the
  Respondent's work force.

EEOC then filed this action against CMLW alleging such discrimination against Blacks and Hispanics generally.*fn1

For the most part Title VII actions are limited in scope to charges stated in the administrative complaint filed with EEOC. Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir. 1976). But entirely consistently with Jenkins a host of other courts have espoused the principle, as stated in EEOC v. General Electric Co., 532 F.2d 359, 366 (4th Cir. 1976) (emphasis in original), that EEOC can bring a federal civil action for:

  any discrimination stated in the charge itself or
  developed in the course of a reasonable investigation
  of that charge. . . .

Here the original charge filed with EEOC stated only a claim of individual discrimination. But EEOC's determination letter said that its investigation stemming from that charge had revealed class-wide discrimination against Hispanics and Blacks. There is thus no doubt that on its face EEOC's statement supports its Complaint under the General Electric test.

CMLW's attack is premised on the assertion that EEOC's investigation did not actually reveal such widespread discrimination, so that EEOC lacked any basis for finding class-wide discrimination. It argues from that premise that EEOC's Complaint must be limited to an allegation of individual discrimination against Randolph.

CMLW's motion asks this Court to look behind EEOC's express finding of broad-scale discrimination to decide whether EEOC had any reasonable basis for making that finding. Such an endeavor is both conceptually and procedurally unsound.

That line of inquiry would deflect the efforts of both the Court and the parties from the main purpose of this litigation: to determine whether CMLW has actually violated Title VII. Acceptance of CMLW's theory would entitle every Title VII defendant to litigate as a preliminary matter whether EEOC had a reasonable basis for its determination. There is after all no logical distinction between cases where suit is brought on the original charge and cases where new charges were discovered in the investigation. Any defendant could just as well challenge whether EEOC had a reasonable basis for a determination of reasonable cause for an individual complaint. CMLW's position would effectively make every Title VII suit a two-step action: First the parties would litigate the question whether EEOC had a reasonable basis for its initial finding, and only then would the parties proceed to litigate the merits of the action.

Title VII's statutory scheme clearly indicates that no such procedure was intended by Congress. EEOC's determination of reasonable cause and the nature of its investigation are completely discretionary. EEOC is not required to create a record or hold any sort of hearing. It is permitted to gather any evidence it deems appropriate. Suppose indeed that this Court were to deny CMLW's motion for summary judgment on the ground that a factual issue existed as to whether EEOC had actually found widespread discrimination in its investigation. Must this Court then conduct a hearing to determine what had turned up in EEOC's inquiry? Professor Nathanson has called such a procedure "probing the mind of the administrator" in his Probing the Mind of the Administrator: Hearing Variations and Standards of Judicial Review Under the Administrative Procedure Act and Other Statutes, 75 Colum.L.R. 721 (1975). It must be remembered that the statute (understandably) contains no hint of what standard of review should be used in that mind-reading process.

Title VII defendants receive a de novo trial on charges of discrimination. Were EEOC to file a complaint of widespread discrimination when its investigation in fact had failed to support its finding, defendants would not be prejudiced as to the final outcome of the litigation. They would of course have been subjected to an unnecessary lawsuit because EEOC had failed properly to investigate the situation. But that potential harm*fn2 must be weighed against the undesirability of turning every properly-filed EEOC action into a two-fold action. As between those alternatives, the Court finds no contest.

Only two courts appear to have discussed this point directly. Each barred a defendant from litigating the question whether EEOC had a proper basis for a determination. EEOC v. E.I. DuPont de Nemours & Co., 373 F. Supp. 1321, 1338 (D.Del. 1974); EEOC v. General Electric Co., 532 F.2d 359, 370 n. 31 (4th Cir. ...

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