H. Kessler & Co. v. Equal Employment Opportunity

468 F.2d 25, 1972 U.S. App. LEXIS 8143, 4 Empl. Prac. Dec. (CCH) 7923, 5 Fair Empl. Prac. Cas. (BNA) 132

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 31, 1972
• Docket: No. 72-1082
• Status: Published

Opinions

PER CURIAM:

The full background and all contentions raised by the parties on this appeal are set out in the opinion of the district court, 53 F.R.D. 330 (N.D.Ga.1971), and therefore need not be repeated here. We affirm in all respects and deem only one issue to merit further explication.

In the course of its opinion, the district court stated:

The Court rules that 42 U.S.C. § 2000e-5(a) and 42 U.S.C. § 2000e-8(e) preclude the EEOC from disclosing information obtained through its investigation to the charging party, the charging party’s attorney, or [the respondent to the charges], prior to institution of court proceedings under Title VII of the Civil Rights Act.

The pertinent text of the cited sections of the Act is set out in the margin.¹

The EEOC contends that Congress did not intend to prohibit the making of such disclosures to the directly interested parties and their attorneys, as the Commission might deem appropriate. What little legislative history there is on this point is simply too general to be helpful. The EEOC argues that to include the parties and their attorneys within the non-disclosure provisions would be antagonistic to the requirement of furnishing a copy of the charge to the respondent and could conceivably prevent furnishing a copy of his own charge to the charging party. Of course the prohibition need not be taken to such a ridiculous extreme. In the case of disclosure to the respondent, the Act mandates service of the charge, and to that extent constitutes an express exception to the non-disclosure provisions; in the case of the charging party receiving a copy of his own charge, nothing which is a mere reiteration of that which he himself originated could constitute a disclosure or publication. Nor do we find the language in § 2000e-5(a) which permits public disclosure with the consent of the parties, to be supportive of the EEOC’s position. We reject the reasoning which goes: if there is authority for things said and done in conciliation proceedings being disclosed with the consent of the parties, how can that consent be obtained without making known to such parties what it is they are asked to consent to release? In those instances where the EEOC conducts conciliation efforts with only one party and neither the opposite party nor his attorney are participants, they are not parties whose consent to disclosure of anything said or done is needed.²

We do not agree that limiting publication of information to the parties, as well as the general public, hinders the function or purpose of the statute. Rather, these portions of the Act are intended to insure that those directly involved in the conciliation process can fully and in good faith participate therein, uninhibited by any threat that their statements and actions will be released to anyone not otherwise privy thereto. Obviously, there are many times when the charging party may be the very person to whom a company most fears any pre-suit release of information. Had Kessler not been apprehensive that the data it made available to the EEOC would in turn be surrendered to Mrs. Watley and improperly publicized by her, it is doubtful that the present suit would have intruded itself into the courts. And it was that apprehension, well-founded as we view the record, which has served to completely thwart the EEOC’s nonjudicial investigative role, and has sabotaged any hope for “informal methods of conference, conciliation, and persuasion.” 42 U.S.C.A. § 2000e-5,(a), supra n. 1.

If voluntary compliance is to remain the touchstone for settlement of alleged violations of this Title of the Civil Rights Act, then the Act’s assurance to parties that information transmitted in confidence will not be betrayed and will not be disclosed to the public “in any manner whatever” must remain absolute. Any exceptions to this assurance provided for in EEOC practices and regulations, notwithstanding the great deference owed these,³ will not be followed. See Espinoza v. Farah Manufacturing Co., 462 F.2d 1331 (5th Cir. 1972). The district court’s judgment is Affirmed.

1 . If the Commission shall determine, after . 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. 42 U.S.C.A. § 2000e-5(a) 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. (emphasis supplied) 42 U.S.C.A. § 2000e-8(e)

2 . Moreover, even were the “consent of the parties” provision of § 2000e-5(a) construed to guarantee the charging party access to the results of conciliation efforts, it would not follow that the investigative data previously obtained by the EEOC would likewise be available. This circuit has distinguished between these two separate types of information, and has held § 2000e-5(a) to apply only to the former. Smith v. Universal Services, Inc., 454 F.2d 154, 156 n. 1 (5th Cir. 1972).

3 . Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 855, 28 L.Ed.2d 158, 165 (1971).