USCA1 Opinion
October 11, 1996 UNITED STATES COURT OF APPEALS
October 11, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_________________________
No. 96-1751
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, Appellee,
v.
ASTRA USA, INC.,
Defendant, Appellant.
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ERRATA SHEET
ERRATA SHEET
The opinion of this court issued on September 6, 1996, is
corrected as follows:
On page 11, line 10 change "(1979)" to "(1980)"
On page 17, line 12 change "(1978)" to "(1979)"
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_________________________
No. 96-1751
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, Appellee,
v.
ASTRA USA, INC.,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
___________________
_________________________
Before
Selya and Cyr, Circuit Judges,
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and Tauro,* District Judge.
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Richard L. Alfred, with whom John A.D. Gilmore, Joshua M.
__________________ _________________ _________
Davis, and Hill & Barlow were on brief, for appellant.
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Arthur G. Telegen, William B. Koffel, Foley, Hoag & Elliot
_________________ __________________ _____________________
LLP, John H. Mason, Robert B. Gordon, Ropes & Gray, John F.
___ ______________ _________________ _____________ _______
Welsh, Testa, Hurwitz & Thibeault LLP, Wilfred J. Benoit, and
_____ ________________________________ __________________
Goodwin, Procter & Hoar LLP on brief for Boston Area Management
____________________________
Attorneys Group, amicus curiae.
Paul D. Ramshaw, with whom C. Gregory Stewart, General
_________________ ___________________
Counsel, Gwendolyn Young Reams, Associate General Counsel,
_______________________
Vincent J. Blackwood, Assistant General Counsel, and Gail S.
_____________________ ________
Coleman were on brief, for appellee.
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Michael Roitman, Shapiro Grace Haber & Urmy, Richard T.
________________ _____________________________ ___________
Seymour, Teresa A. Ferrante, Helen Norton, and Ozell Hudson, Jr.
_______ __________________ ____________ __________________
on brief for Lawyers Committee for Civil Rights Under Law,
Women's Legal Defense Fund, Massachusetts Black Lawyers
Association, and Lawyers Committee for Civil Rights Under Law of
the Boston Bar Association, amici curiae.
_________________________
September 6, 1996
_________________________
_______________
*Of the District of Massachusetts, sitting by designation.
SELYA, Circuit Judge. In this case of first
SELYA, Circuit Judge.
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impression, defendant-appellant Astra USA, Inc. ("Astra" or "the
company") challenges a preliminary injunction restraining it from
entering into or enforcing settlement agreements containing
provisions that prohibit settling employees both from filing
charges of sexual harassment with the Equal Employment
Opportunity Commission ("EEOC" or "the Commission") and from
assisting the Commission in its investigation of any such
charges.1 For the reasons that follow, we affirm the preliminary
injunction in part and vacate it in part.
I. BACKGROUND
I. BACKGROUND
The EEOC is currently investigating three sexual
harassment charges filed against Astra. At least two of these
charges allege class-wide improprieties. The controversy before
us arose when the Commission found its investigation hampered by
certain settlement agreements entered into between Astra and
sundry employees who theretofore had pursued sexual harassment
claims. The problem first surfaced when an EEOC investigator,
Brenda Choresi Carter, spoke with a former Astra employee on May
7, 1996. According to Carter, the employee stated that she
possessed relevant information but was unable to disclose it "due
to a confidential settlement agreement that she had entered into
____________________
1The settlement agreements involve, and the district court's
injunction covers, both employees and former employees of Astra.
It is unnecessary to distinguish between these two groups for
purposes of this appeal. Consequently, we use the collective
noun "employees" to encompass both past and present
employees.
3
with Astra." Although this conversation supplies the EEOC's most
concrete proof that Astra's settlement agreements are hindering
its probe, the Commission also points to other evidence hinting
that the agreements may be stifling potential sources. One
employee who expressed reluctance about speaking with an EEOC
investigator refused to say whether she had entered into a
settlement agreement. Then, too, when the EEOC contacted ninety
employees and requested information, only twenty-six replied.
Although the Commission finds this widespread unresponsiveness to
be sinister, its cause is unproven.
This is the extent of the hard evidence as to the
impact of the settlement agreements on the EEOC's investigation.
In all events, the Commission has not unleashed its subpoena
power, see 42 U.S.C. 2000e-9 (1994) (incorporating by reference
___
29 U.S.C. 161), to compel any recalcitrant employee to furnish
relevant information.
The record reveals that Astra has entered into at least
eleven settlement agreements the exact number remains uncertain
with employees who claimed to have been subjected to, or to
have witnessed, sexual harassment. The details of these
agreements vary, but they all contain versions of four provisions
that are relevant to the disposition of this appeal. First, the
settling employee agrees not to file a charge with the EEOC.
Second, the settling employee agrees not to assist others who
4
file charges with the EEOC.2 Third, the settling employee
releases all employment-related claims against Astra and those in
privity with Astra (including Astra's management). Fourth, the
settling employee assents to a confidentiality regime under which
she is barred from discussing the incident(s) that gave rise to
her claim and from disclosing the terms of her settlement
agreement.
After the EEOC learned of Astra's artful draftsmanship,
it asked the company to rescind those portions of the settlement
agreements that prohibited individuals from filing charges with
the Commission ("non-filing provisions") and from aiding the
Commission's investigations ("non-assistance provisions"). Astra
defended both the non-filing and the non-assistance provisions
____________________
2While the precise phraseology of the non-filing and non-
assistance covenants varies from pact to pact, the import is the
same. By way of illustration, a representative agreement
contains a covenant binding the settling employee "not to file or
to assist in any way anyone else who files any claim, complaint,
or charge nor institute any lawsuit against ASTRA, its officers,
directors, agents, or employees arising out of her employment or
termination of employment with ASTRA, including, but not limited
to, any claim, complaint, charge, or lawsuit under the Civil
Rights Act of 1991, Title VII of the Civil Rights Act of 1964,
Americans with Disabilities Act, the Massachusetts Fair
Employment Practice Act, any other federal or state law or
statute, or any claim which could be alleged under the common
law." In another iteration, some settlement agreements confirm
that the settling party will not "voluntarily provide any
assistance" to persons asserting claims against Astra.
While the non-assistance provisions have two facets they
purport to bar assistance to both the EEOC and fellow employees
the Commission so far has challenged only that facet of the non-
assistance provisions which purports to prevent settling
employees from communicating with the Commission. Since the EEOC
has not yet objected to that part of the non-assistance
provisions which precludes a settling employee from aiding
another employee in preferring a claim against Astra, we take no
view of that aspect of the matter.
5
but added that it "do[es] not interpret any settlement agreement
as preventing any . . . employee from communicating with the EEOC
concerning any of its investigations." Astra's concession on the
right of settling employees to communicate with the Commission
remains somewhat tenebrous: at oral argument, the company's
counsel suggested that employees must await a subpoena before
sharing information with the EEOC. At any rate, Astra
steadfastly maintains that employees who have signed settlement
agreements may not volunteer any information to the Commission
that is beyond the scope of an ongoing investigation.
Dissatisfied with Astra's response, the EEOC filed suit
seeking injunctive relief pursuant to section 706(f)(2) of Title
VII, 42 U.S.C. 2000e-5(f)(2). Without convening an evidentiary
hearing, the district court granted the request for a preliminary
injunction and enjoined Astra for the time being "from entering
into or enforcing provisions of any Settlement Agreements which
prohibit current or former employees from filing charges with the
EEOC and/or assisting the Commission in its investigation of any
charges." EEOC v. Astra U.S.A., Inc., 929 F. Supp. 512, 521 (D.
____ __________________
Mass. 1996). The court also directed Astra to "provide a copy of
this injunction to all current and former employees who have
signed Settlement Agreements to assure them of notification of
their rights set forth herein." Id. Astra appealed and
___
requested interim relief. We stayed the operation of the
injunction (subject to certain conditions not relevant here) and
expedited appellate proceedings.
6
II. ANALYSIS
II. ANALYSIS
We first delineate certain legal standards (a task
that, in this instance, requires us to resolve a threshold
question). We then evaluate the injunction as it affects the
non-assistance and non-filing provisions, respectively.
A. The Applicable Preliminary Injunction Standard.
A. The Applicable Preliminary Injunction Standard.
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In the typical case, a party seeking preliminary
injunctive relief must prove: (1) a substantial likelihood of
success on the merits; (2) a significant risk of irreparable harm
if the injunction is withheld; (3) a favorable balance of
hardships; and (4) a fit (or, at least, a lack of friction)
between the injunction and the public interest. See Narragansett
___ ____________
Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991). Here,
_____________ ________
however, the EEOC asserts that Congress, by enacting section
706(f)(2) of Title VII, specifically authorized the agency to
seek injunctive relief in the public interest.3 Based on this
circumstance, the EEOC argues that it need not satisfy the
traditional test for preliminary injunctive relief but, instead,
must only meet the built-in criterion that section 706(f)(2)
____________________
3The statute provides in material part:
Whenever a charge is filed with the
Commission and the Commission concludes on
the basis of a preliminary investigation that
prompt judicial action is necessary to carry
out the purposes of this Act, the Commission
. . . may bring an action for appropriate
temporary or preliminary relief pending final
disposition of such charge.
42 U.S.C. 2000e-5(f)(2).
7
itself establishes. On this approach an injunction is
appropriate as long as the Commission, after conducting a
preliminary investigation of a pending charge of discrimination,
(1) determines that prompt judicial intervention is essential to
carry out the purposes of Title VII, and (2) makes out a prima
facie case that the defendant has committed (or is likely to
commit) serious violations of Title VII which, if not enjoined,
will frustrate the Act's purposes. In practice, the difference
between the two approaches may be more apparent than real. The
EEOC, however, sees two key distinctions: under its approach the
public interest prong becomes a foregone conclusion (for the
Commission is itself the standard-bearer for the public
interest), and, in addition, a somewhat lessened showing of
irreparable harm may be adequate to justify preliminary
injunctive relief.
The circuits are in some disarray regarding whether the
EEOC must meet the traditional four-part test for injunctive
relief. See, e.g., Baker v. Buckeye Cellulose Corp., 856 F.2d
___ ____ _____ ________________________
167, 169 (11th Cir. 1988) (holding that an allegation of a Title
VII violation establishes a rebuttable presumption of irreparable
injury); EEOC v. Pacific Press Pub. Ass'n, 535 F.2d 1182, 1187
____ _________________________
(9th Cir. 1976) (suggesting that "the usual requirement of
irreparable injury is relaxed" when the EEOC seeks injunctive
relief pendente lite); cf. EEOC v. Cosmair, Inc., 821 F.2d 1085,
________ ____ ___ ____ _____________
1090 (5th Cir. 1986) (holding, in an ADEA case, that "[w]hen an
injunction is expressly authorized by statute and the statutory
8
conditions are satisfied, the movant need not establish specific
irreparable injury to obtain a preliminary injunction").
Amidst these subtly shaded solutions, the Sixth Circuit
struck a blow for clarity and flatly rejected the EEOC's
interpretation of section 706(f)(2). See EEOC v. Anchor Hocking
___ ____ ______________
Corp., 666 F.2d 1037, 1040-41 (6th Cir. 1981). We think that
_____
this is the right result. There is nothing in the language of
section 706(f)(2) that can fairly be read to limit a district
court's discretion in issuing preliminary injunctions. In
authorizing the EEOC to "bring an action for appropriate
temporary or preliminary relief," the statute does not purport to
wrest the final decision on whether relief is warranted from the
courts. See id. at 1041 & n.4 (comparing 706(f)(2) with other
___ ___
federal statutes which by their language restrict the district
courts' discretion in issuing injunctions). Moreover, this court
has consistently emphasized the importance of a showing of
irreparable harm in the calculus of injunctive relief. See,
___
e.g., Gately v. Commonwealth of Mass., 2 F.3d 1221, 1232 (1st
____ ______ ______________________
Cir. 1993) (stating that "a federal court cannot dispense with
the irreparable harm requirement in affording injunctive
relief"), cert. denied, 114 S. Ct. 1832 (1994). In our view this
_____ ______
principle, which is predicated on the teaching that "[t]he basis
of injunctive relief in the federal courts has always been
irreparable harm and inadequacy of legal remedies," Beacon
______
Theatres, Inc. v. Westover, 359 U.S. 500, 506-07 (1959), is of
_______________ ________
paramount importance and should not lightly be set aside.
9
Because we see no evidence in this instance that Congress, in
drafting section 706(f)(2), intended the courts to depart from
this rule, we hold that the EEOC like any other suitor must
meet the familiar four-part test for preliminary injunctive
relief.
We review the district court's grant of a preliminary
injunction for mistake of law or abuse of discretion. See
___
Narragansett Indian Tribe, 934 F.2d at 5; Independent Oil & Chem.
_________________________ _______________________
Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d
________________________ __________________________
927, 929 (1st Cir. 1988). A party appealing from either the
grant or the denial of a preliminary injunction bears the
considerable burden of demonstrating that the district court
flouted this standard. See Gately, 2 F.3d at 1225.
___ ______
B. Non-Assistance Agreements.
B. Non-Assistance Agreements.
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With these principles in mind, we turn to those
provisions of the settlement agreements that prohibit employees
from aiding the EEOC in its investigation of charges.4 Astra
objects to the portion of the injunction that bans it from either
introducing or enforcing these provisions on two grounds. First,
it claims that the injunction issued without a satisfactory
showing of irreparable harm. Second, it claims that the
injunction is unnecessary because it now interprets the
settlement agreements to permit various types of communication
____________________
4Although the precise terms of the settlement agreements
vary, see supra note 2 & accompanying text, we think that many
___ _____
settling parties would interpret these provisions, however they
may be couched, as barring them from volunteering information to
the EEOC or cooperating with its investigators.
10
with the EEOC. Both claims lack force.
In determining whether the district court was justified
in finding a significant risk of irreparable harm, we first note
that when the likelihood of success on the merits is great, a
movant can show somewhat less in the way of irreparable harm and
still garner preliminary injunctive relief. See Michigan
___ ________
Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945
_____________________________________________ ___________
F.2d 150, 153 (6th Cir. 1991) ("Simply stated, more of one
excuses less of the other."); Maram v. Univesidad Interamericana
_____ _________________________
de P.R., Inc., 722 F.2d 953, 958 (1st Cir. 1983) (stating that
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"these interests must be weighed inter sese"); see also John
___ ____
Leubsdorf, The Standard for Preliminary Injunctions, 91 Harv. L.
_________________________________________
Rev. 525, passim (1978). Thus, we start this phase of our
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inquiry by addressing whether a broad non-assistance agreement is
void as against public policy. If it is overwhelmingly clear
that the provisions prohibiting settlors from assisting in EEOC
investigations offend public policy, a lesser showing that those
provisions are causing irreparable harm will suffice to support a
preliminary injunction barring their enforcement.
We build on bedrock. "[A] promise is unenforceable if
the interest in its enforcement is outweighed in the
circumstances by a public policy harmed by enforcement of the
agreement." Town of Newton v. Rumery, 480 U.S. 386, 392 (1987).
______________ ______
In performing that balancing here, we must weigh the impact of
settlement provisions that effectively bar cooperation with the
EEOC on the enforcement of Title VII against the impact that
11
outlawing such provisions would have on private dispute
resolution.
Congress entrusted the Commission with significant
enforcement responsibilities in respect to Title VII. See 42
___
U.S.C. 2000e-5(a). To fulfill the core purposes of the
statutory scheme, "it is crucial that the Commission's ability to
investigate charges of systemic discrimination not be impaired."
EEOC v. Shell Oil Co., 466 U.S. 54, 69 (1984). Clearly, if
____ ______________
victims of or witnesses to sexual harassment are unable to
approach the EEOC or even to answer its questions, the
investigatory powers that Congress conferred would be sharply
curtailed and the efficacy of investigations would be severely
hampered.
What is more, the EEOC acts not only on behalf of
private parties but also "to vindicate the public interest in
preventing employment discrimination." General Tel. Co. v. EEOC,
________________ ____
446 U.S. 318, 326 (1980). In many cases of widespread
discrimination, victims suffer in silence. In such instances, a
sprinkling of settlement agreements that contain stipulations
prohibiting cooperation with the EEOC could effectively thwart an
agency investigation. Thus, any agreement that materially
interferes with communication between an employee and the
Commission sows the seeds of harm to the public interest. See
___
Cosmair, 821 F.2d at 1090 (stating that "an employer and an
_______
employee cannot agree to deny to the EEOC the information it
12
needs to advance this public interest").5
To complete the balance we must next address what
impact the injunction against non-assistance covenants might have
on private dispute resolution. We do not doubt that public
policy strongly favors encouraging voluntary settlement of
employment discrimination claims. See, e.g., Carson v. American
___ ____ ______ ________
Brands, Inc., 450 U.S. 79, 88 n.14 (1981). Yet we fail to see
____________
that this portion of the injunction creates a substantial
disincentive to settlement, and Astra makes no plausible argument
to the contrary. Simply put, this monition does nothing at all
to promote further litigation between Astra and the settling
employee or to disturb the finality of the negotiated settlement.
Thus, weighing the significant public interest in encouraging
communication with the EEOC against the minimal adverse impact
that opening the channels of communication would have on
settlement, we agree wholeheartedly with the lower court that
____________________
5Cosmair arose under the Age Discrimination in Employment
_______
Act (ADEA), 29 U.S.C. 621-634 (1994), and Astra asserts that
it is inapposite here because unsupervised settlement agreements
that waive employees' claims are more suspect under the ADEA than
under Title VII. This assertion is based on a fundamental
misunderstanding. The right to assist the EEOC is not a damages-
driven right. Indeed, the court below specifically held that
settling employees had waived the right to recover damages in
either their own lawsuits or in lawsuits brought by the EEOC on
their behalf. See Astra, 929 F. Supp. at 521. In contrast to
___ _____
the individual right to recover damages, however, an employee's
right to communicate with the EEOC must be protected not to
safeguard the settling employee's entitlement to recompense but
instead to safeguard the public interest. Hence, it is not a
right that an employer can purchase from an employee, nor is it a
right that an employee can sell to her employer. Thus, a waiver
of the right to assist the EEOC offends public policy under both
the ADEA and Title VII.
13
non-assistance covenants which prohibit communication with the
EEOC are void as against public policy.
We now return to Astra's principal assertion: that,
because the EEOC could obtain the information it seeks through
the use of its subpoena power, there is no evidence of
irreparable harm and, hence, no basis for fashioning the disputed
segment of the injunction. This boils down to a contention that
employees who have signed settlement agreements should speak only
when spoken to. We reject such a repressive construct. It would
be most peculiar to insist that the EEOC resort to its subpoena
power when public policy so clearly favors the free flow of
information between victims of harassment and the agency
entrusted with righting the wrongs inflicted upon them. Such a
protocol would not only stultify investigations but also
significantly increase the time and expense of a probe.
In any event, the district court specifically found a
likelihood of irreparable harm "because the Commission's ability
to investigate charges of discrimination and to enforce anti-
discrimination laws has been and continues to be impeded by the
chilling effect caused by the offending provisions of the
Agreements." Astra, 929 F. Supp. at 520. Given Carter's
_____
affidavit and the likely effect of the wording that Astra
inserted into the settlement agreements, see supra note 2, we
___ _____
think that this finding is supportable. Thus, there is a
sufficient risk of irremediable harm to warrant the issuance of a
preliminary injunction addressed to the non-assistance
14
provisions.
Astra further argues that an injunction is
inappropriate because it does not interpret the settlement
agreements as barring communication with the EEOC. This argument
is doubly flawed. In the first place, Astra admits only that
settlors may answer questions when subpoenaed by the EEOC, and
that is much too narrow a concession. In the second place, Astra
cannot defeat an injunction now by indulging in a revisionist
interpretation of the settlement agreements that would permit
full and open communication with the EEOC. "It is the duty of
the courts to beware of efforts to defeat injunctive relief by
protestations of repentance and reform, especially when
abandonment seems timed to anticipate suit . . . ." United
______
States v. Oregon State Medical Soc'y, 343 U.S. 326, 333 (1952);
______ ___________________________
accord Chang v. Univ. of R.I., 606 F. Supp. 1161, 1275 (D.R.I.
______ _____ ______________
1985). Here, Astra drafted aggressive settlement agreements
under which employees pledged "not to assist in any way" in
proceedings against it. The district court supportably found
that these agreements had in fact chilled communications between
the settling employees and the EEOC. Astra's attempts to
reinterpret the operative provisions of its agreements when under
siege come too late to prevent the issuance of an injunction.
We need not add hues to the rainbow. The district
court neither misperceived the law nor misused its discretion in
enjoining the utilization of settlement provisions that prohibit
employees from assisting the EEOC in investigating charges of
15
discrimination. Consequently, employees who have signed such
settlement agreements may respond to questions from EEOC
investigators and also may volunteer information concerning
sexual harassment at Astra to the EEOC.6
C. Non-Filing Agreements.
C. Non-Filing Agreements.
_____________________
In addition to enjoining Astra from entering into or
enforcing the non-assistance provisions of the settlement
agreements, the district court also enjoined Astra from entering
into or enforcing those provisions that ban employees from filing
charges with the EEOC. Astra assigns error. It argues, inter
_____
alia, that public policy favors the enforcement of such
____
covenants; that the EEOC will not suffer irreparable harm in the
absence of an injunction; and that the restraint exceeds the
bounds authorized under 42 U.S.C. 2000e-5(f)(2). Because we
agree that the EEOC has made no showing that it will suffer
irreparable harm in the absence of this portion of the
injunction, we decline to reach Astra's other claims.
Our analysis of this issue does not evolve from an
exploration of the relation between irreparable harm and
____________________
6Though the injunction does not specifically address the
confidentiality covenants to which the settlement agreements are
subject, the terms of the injunction forbid Astra from enforcing
any contractual provisions that impede settling employees from
___
assisting the EEOC in ongoing investigations. Thus, the
injunction effectively precludes enforcement of the
confidentiality covenants to block the divulgement of relevant
information (including divulgement of the entire contents of any
particular settlement agreement) to the Commission. We need not
probe this point more deeply, because Astra now interprets the
confidentiality language as inapplicable to communications
between settling employees and the EEOC relevant to an ongoing
investigation.
16
likelihood of success on the merits. That inquiry is most
utilitarian in instances in which the issue is whether the degree
of harm is sufficient to warrant injunctive relief. See, e.g.,
___ ____
supra Part II(B). Here, however, there is no significant risk of
_____
irreparable harm and that fact alone is dispositive. See
___
Gately, 2 F.3d at 1232.
______
This conclusion rests on the role that the filing of a
charge plays in the statutory scheme. The EEOC has no authority
to conduct an investigation based on hunch or suspicion, no
matter how plausible that hunch or suspicion may be. The reverse
is true: the Commission's power to investigate is dependent upon
the filing of a charge of discrimination. "[U]nlike other
federal agencies that possess plenary authority to demand to see
records relevant to matters within their jurisdiction, the EEOC
is entitled to access only to evidence `relevant to the charge
under investigation.'" Shell Oil, 466 U.S. at 64 (quoting
_________
statute).
Once a charge is filed with the EEOC, the situation
changes dramatically. The allegations contained in the charge do
not narrowly circumscribe the Commission's investigation.
Rather, the charge serves as "a jurisdictional springboard"
enabling the Commission "to investigate whether the employer is
engaged in any discriminatory practices." EEOC v. Huttig Sash &
____ _____________
Door Co., 511 F.2d 453, 455 (5th Cir. 1975). So viewed, the
________
charge is capable of supporting an EEOC investigation into both
the discrimination described in the charge itself and into the
17
surrounding circumstances (including a full probing of any
evidence of discriminatory practices unearthed during the course
of the initial investigation). See EEOC v. General Elec. Co.,
___ ____ _________________
532 F.2d 359, 366 (4th Cir. 1976).
Given this set of rules, the EEOC's claim of
irreparable harm cannot withstand scrutiny. The EEOC is already
investigating three charges against Astra, two of which allege
class-wide sexual harassment in the workplace. These charges
provide the EEOC with jurisdiction to conduct a thorough
investigation into incidents of sexual harassment, invidious
practices, and other prohibited conduct that may have occurred at
Astra over time. Additionally, the portion of the injunction
that prevents the enforcement of the settlement agreements' non-
assistance provisions a portion of the injunction that we
uphold, see supra Part II(B) ensures that employees will be
___ _____
able to cooperate freely with the EEOC's investigators.
The short of it is that, once an injunction issues
prohibiting Astra from enforcing the non-assistance covenants,
this case offers no prospect of irreparable harm to the EEOC.
Thus, the judicial restraint that the district court imposed
against enforcement of the non-filing covenants violates the
tenet that "injunctive relief should be no more burdensome to the
defendant than necessary to provide complete relief to the
plaintiffs." Califano v. Yamasaki, 442 U.S. 682, 702 (1979).
________ ________
This case is an especially attractive candidate for
application of the Yamasaki doctrine. The difficult, highly
________
18
ramified questions that surround the validity of non-filing
covenants counsel persuasively against reaching out past what is
required during the preliminary injunction phase. Consequently,
we believe it was inadvisable and legally incorrect for the
district court, on the sparse evidence contained in this record,
to attempt to confront the thorny question of whether agreements
not to file charges with the EEOC are void as against public
policy. Courts should take care not to yearn for the blossom
when only the bud is ready.7
In an effort to coax a different result, the EEOC
bemoans the increased burden that it would face if it had to
compel potential witnesses' cooperation by subpoena. As applied
to this portion of the preliminary injunction, the Commission's
asseveration is a non sequitur. As long as enforcement of the
non-assistance covenants is enjoined, the EEOC's current
investigations will not be impeded even if settling parties
cannot file additional charges. And as we have already noted,
those investigations are sufficiently broad in scope to permit
____________________
7We take no view today of the validity vel non of non-filing
___ ___
covenants. The question is close and the answer is not obvious
to us. On one hand, a charge is sometimes a prerequisite to
action in the public interest by the EEOC; that consideration
argues for abrogating such covenants. On the other hand, if non-
filing agreements are unenforceable, private settlement of
harassment claims will be hindered significantly and employers
seeking finality may well insist that employees file charges with
the EEOC as a precondition to any settlement; this consideration
argues for upholding such covenants. All in all, we conclude
that trying to resolve the tension between these laudable but
competing goals in a case in which no discernible need for the
requested relief exists and no fully developed factual record is
available courts potential mischief.
19
the Commission to get to the bottom of the unsavory (but, as yet,
unproven) allegations that are swirling around the company.
To be sure, we are cognizant of the possibility that
additional charges filed with the EEOC perhaps could serve as a
basis to expand the temporal scope of the ongoing investigations.
Thus, the non-filing covenants, if left undisturbed,
theoretically could limit the claims of some class members
against Astra, and this limitation might in turn provide a basis
for a finding of irreparable harm. But that is sheer speculation
on this exiguous record. Absent any hard evidence that anyone
who signed a settlement agreement with Astra now seeks to press
charges with the EEOC which, if filed, would expand the
investigations' scope, the disputed portion of the injunction is
unwarranted. If the EEOC's investigations subsequently reveal
that such a situation actually exists, that is the time to renew
the quest for an injunction against enforcement of the non-filing
provisions contained in Astra's settlement agreements.
III. CONCLUSION
III. CONCLUSION
We need go no further. The EEOC will receive full
relief from that portion of the district court's injunction which
restrains Astra from entering into or enforcing the non-
assistance provisions of its settlement agreements. We therefore
affirm that portion of the injunction, vacate the portion
enjoining Astra from entering into or enforcing non-filing
covenants in connection with those agreements, and remand for the
entry of a revised decree consistent herewith.
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Affirmed in part, vacated in part, and remanded. The
Affirmed in part, vacated in part, and remanded. The
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stay previously granted is dissolved. Each party shall bear its
stay previously granted is dissolved. Each party shall bear its
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own costs.
own costs.
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