The opinion of the court was delivered by: GESELL
The Equal Employment Opportunity Commission ("EEOC") has been investigating Sears, Roebuck and Co. ("Sears") since 1973 as to both race and sex discrimination in employment. Sears seeks a declaratory judgment and injunction in each of these cases to prevent EEOC from releasing data obtained by that agency through its investigation or in the course of settlement discussions.
These related actions were brought when it developed that EEOC intended to release data in its possession to numerous charging parties who have filed discrimination charges against Sears with the Commission. The intervenors are two women who have requested data in contemplation of a class action against Sears. The cases primarily call into question the scope of the disclosure provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-5(b), 2000e-8(e) (1970 & Supp. V 1975), and the nature and effect of various rules and guidelines promulgated by the Commission to implement Title VII. Prior to this decision the Court entered Orders staying further disclosure pendente lite. The issues were submitted to the Court on cross-motions for summary judgment. In all but one aspect, namely whether or not the agency had promised to hold certain information privileged, it appeared that no material issues of fact remained to be resolved. A hearing was held on this one disputed issue, and now, after extensive briefing and oral argument, the matter is ready for disposition.
EEOC was created by Congress as the primary enforcement mechanism to assure nondiscrimination in employment. Individuals aggrieved by a violation of Title VII are required to exhaust administrative remedies by filing a discrimination charge with the Commission prior to initiating court action. 42 U.S.C. § 2000e-5 (1970 & Supp. V 1975); Love v. Pullman Co., 404 U.S. 522, 523, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972). Charges may also be filed by an EEOC Commissioner. When a discrimination charge has been filed, the Commission is empowered to conduct an investigation to determine whether "reasonable cause" exists to credit the charge. 42 U.S.C. § 2000e-5(b) (Supp. V 1975). Where the Commission suspects systematic discrimination by a large employer, all related claims against that employer may be "consolidated" into a single, comprehensive investigation and file. EEOC Compliance Manual § 11.
Following investigation the Commission must notify the charging party, the respondent employer, and any "aggrieved person"
of its determination. 42 U.S.C. § 2000e-5(b) (Supp. V 1975); 29 C.F.R. § 1601.19b(b)(1976). If no reasonable cause is found, the charge will be dismissed; if reasonable cause is credited, the EEOC must attempt to reach a conciliated agreement with the employer. 42 U.S.C. § 2000e-5(b) (Supp. V 1975). Conciliation failing, the Commission must again notify the charging parties. In the case of a private employer like Sears, it is also empowered to bring a civil action. Id. § 2000e-5(f).
Although resort must first be had to EEOC, private charging parties are not forever tied to the apron strings of the Commission. After a charge has been dismissed or conciliation efforts have failed, the charging party can file a lawsuit against the employer. Id. § 2000e-5(f)(1). In addition, the Commission must grant the charging party permission to bring a private action upon his request after 180 days have passed since the filing of the complaint, regardless of whether the Commission's investigative and conciliation efforts have been exhausted or not. Id. ; 29 C.F.R. §§ 1601.25b(c),.25c(d) (1976).
On August 30, 1973, then-EEOC Chairman William H. Brown issued a charge alleging employment discrimination by Sears on a nationwide basis. Several hundred private discrimination charges filed with EEOC against Sears were consolidated and subordinated to the Commissioner's charge, and a single national investigation went forward, producing a single consolidated file. Pursuant to Commission interrogatories Sears turned over to EEOC a large amount of data it considered sensitive.
On December 15, 1975, during the course of the investigation period, EEOC and Sears commenced what the Commission refers to as "predetermination settlement discussions." These discussions are nowhere authorized by Title VII, but they are contemplated in the Commission's regulations, 29 C.F.R. § 1601.19(a) (1976), and apparently are a regular practice of the Commission. A series of conferences ensued. Sears made various proposals and counterproposals in the form of statistical analyses and breakdowns of its entire personnel scattered through some 2,000 Sears facilities. The data were arranged under various "Affirmative Action Job Categories" and included information as to salary ranges and the sex, race, and number of persons employed in the different groupings. This information had not been requested by EEOC during its regular investigation and indeed was not even available within Sears. It was developed specifically for purposes of settlement at substantial expense to Sears by outside computer specialists.
After predetermination settlement discussions had begun, a number of private charging parties requested that EEOC release to them data from the consolidated file that was relevant to their individual claims. Some of the requested information came from responses to the interrogatories propounded by the Commission to Sears; the remainder was gained by the Commission in the course of predetermination settlement discussions. Some of the requesting parties had filed suit; others were contemplating suit. In all cases the 180-day period had run, and right-to-sue letters had either been received or could have been received from the Commission upon request. In several instances the Commission agreed to release the data subject to a promise of nondissemination by the recipients. Sears then filed suit in C.A. 77-393 to enjoin this release.
By agreement of the parties an Order was entered enjoining disclosure of the data pending resolution of the case. After oral argument on cross-motions for summary judgment had been heard, the Commission, without prior notice to the Court, entered a finding of reasonable cause against Sears in the form of a 250-page "Commission Decision," which analyzed in detail the data gathered by investigation and through settlement proposals. While both EEOC and Sears prepared to enter the statutorily mandated conciliation phase of the administrative process, the Commission sent Letters of Determination ("LODs") to some private charging parties, not only notifying each of the findings of probable cause in the consolidated investigation, but also reciting in varying, but substantial detail, the factual basis for the determination as it related to the individual's case. A copy of the entire Commission Decision was promised. No admonition against dissemination of the factual findings accompanied those letters.
In the first case, C.A. 77-393, Sears objects to the threatened disclosure of data in the consolidated file obtained by EEOC both through investigation and in the course of settlement discussions. The Commission proposes to release the data only to charging parties who have requested it, who have filed or are eligible to file private lawsuits against Sears, and who have agreed to hold the data in confidence except in the course of litigation. In the second case, C.A. 77-924, Sears disputes the Commission's right to include factual data in the LODs sent to all charging parties. It also contests the issuance of any part of the Commission Decision to any charging party. The questions raised in each case are comparable. A unified analysis follows.
The Commission finds authority for release of the information in its regulations and internal guidelines. 29 C.F.R. §§ 1601.19b(b),.20, 1610.17(d) (1976); EEOC Compliance Manual § 83. Sears argues that these provisions are invalid because the regulations and ...