SOBELOFF, Circuit Judge:
This case arises under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Appellee Graniteville Company, Sibley Division, petitioned the District Court to set aside a "Demand for Access to Evidence" served by the Equal Employment Opportunity Commission (EEOC). The Commission cross-petitioned for enforcement of its Demand and now appeals from the Order, 316 F.Supp. 1177, setting the Demand aside.
On February 12, 1968, the EEOC received an unsworn charge of discrimination against Graniteville from Edward Price and James C. Walker, two Negro employees of the company's Sibley Division in Augusta, Georgia. A formal, sworn charge was perfected on March 26, 1968, by Price with the assistance of an Equal Employment Opportunity Officer. In substance that charge alleged that (1) Negroes are discriminated against in promotion policies; (2) Negroes are harassed, placed in fear of job loss, and subjected to different conditions than white employees; (3) concession stands, locker and toilet facilities are segregated on the basis of race; (4) Negroes are hired for traditionally Negro jobs.
The response of the company was to file a Petition to Set Aside the Demand.
Standing to Initiate Commission Proceedings
Graniteville argues, and the court below held, that Price is not an aggrieved party because he did not reveal any particular manner in which he personally was aggrieved. Yet his charge filed with the EEOC indicates that he has been discriminated against because of his race, that the company maintains racial classifications of jobs, fails to promote members of Price's race or give them the consideration for better jobs that white employees receive, and that members of his race are harassed, placed in fear of losing employment, and relegated to the use of segregated concession stands and locker and toilet facilities. These allegations are more than sufficient to establish standing in Price to initiate Commission proceedings.
A. Standards for a Valid Charge
We do not deny the proposition put forth by Graniteville that the EEOC is without jurisdiction to proceed in the absence of a valid charge. See Equal Employment Opportunity Commission v. Union Bank, 408 F.2d 867 (9th Cir. 1969). However, the statute quite clearly requires only that a charge be filed "by a person claiming to be aggrieved" by an employer, employment agency, or
The EEOC is correct in its position that, in the context of Demand enforcement proceedings, "Title VII contains no provision authorizing a general inquiry into the sufficiency of the evidence supporting a charge," as the court below undertook in this case. The EEOC in its investigation is seeking only to determine the existence of reasonable cause to believe that the charge is true. See 42 U.S.C. § 2000e-5(a). In conducting hearings into the aggrieved status of the charging party the court required the EEOC to make a reasonable cause showing as a prerequisite to enforcement of the Commission Demand issued in the course of an investigation designed to determine the existence of reasonable cause. That is not only to place the cart before the horse, but to substitute a different driver for the one appointed by Congress. The statutory standard to be applied in a Demand enforcement proceeding is one of relevancy and materiality, not one of reasonable cause to believe the charge is true. 42 U.S.C. § 2000e-9(a).
Such judicial hearings into the merits of the charging party's allegations also frustrate congressional intent by entailing extensive delay in the disposition of Title VII cases. We have previously noted that there can be no doubt "that Congress intended the remedies provided to be timely and effective." Johnson v. Seaboard Air Line Railroad Company, 405 F.2d 645, 651 (4th Cir. 1968). More than a year elapsed between the filing of Graniteville's petition and the granting of the Order setting aside the Demand for Evidence. Such delays are clearly to be avoided if possible and are not justified by examinations into the aggrieved status of the charging party during Demand enforcement proceedings.
B. The Title VII "Aggrieved" Party
The court also erred in holding that Price was not claiming to be aggrieved because his charge did not "reveal any particulars" in which he was aggrieved. Employer unlawful employment practices include discrimination on the basis of race "against any individual with respect to his compensation, terms, conditions, or privileges of employment" and classifying employees on the basis of race "in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee."
If, as alleged, Graniteville discriminates on the basis of race in making job assignments, promoting employees, and operating the facilities it provides for the benefit of its employees, Price unquestionably is being classified in a manner and subjected to terms and conditions of employment which violate the
It is for just this reason that a Title VII suit alleging a discriminatory promotion policy is not mooted by the plaintiff's acceptance of a promotion from the defendant subsequent to filing suit. Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968). Noting that under the Title VII structure enforcement of nondiscrimination in employment is left largely to private action, the Fifth Circuit rejected the mootness argument on the grounds that "[w]hether in name or not, the suit is perforce a sort of class action for fellow employees similarly situated." Id. at 33. The logic of that decision is pertinent here. Under Graniteville's reasoning the party would no longer be aggrieved after accepting the promotion, would no longer have standing to file a charge with the EEOC, and therefore would no longer be entitled to maintain a Title VII suit against his employer.
We also take note of the Fifth Circuit's holding that a charging party may even be aggrieved by employment practices to which he is not immediately subject. Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5th Cir. 1970), aff'g on the opinion of the District Court, 295 F.Supp. 1281 (N.D.Miss.1969); cf. Cypress v. Newport News General Hospital Ass'n, 375 F.2d 648 (4th Cir. 1967). In Carr the court upheld the standing of plaintiffs, allegedly denied employment with the defendant because of their race, to challenge such alleged internal policies of the defendant as racial classification of jobs and segregation of facilities. The allegation by Price in the case at hand that he personally and the class he represents are subject to defendant's discriminatory employment policy is more than sufficient to establish his standing to initiate EEOC proceedings though he makes no claim that the policy has been applied to him in a specific instance.
Specificity of the Charge
Section 706(a), 42 U.S.C. § 2000e-5(a), provides in pertinent part:
Graniteville contends that the charge in this case is deficient in setting forth the facts upon which it is based since it "contains no names, incidents, dates, jobs, places or related information." The error in this construction of the statute is best revealed by examining the role of the charge in Title VII proceedings.
Charges are filed with the EEOC by lay-complainants who are unfamiliar with the niceties of pleading, and nearly always are without the assistance of counsel. The Commission then sets about a nonadversary investigation (in
The purpose of the charge under section 706 is only to initiate the EEOC investigation, not to state sufficient facts to make out a prima facie case. The parenthetical clause in section 706(a) only requires a sufficient allegation to give the EEOC notice of what it is to investigate and put the respondent on notice of the practice or violation with which it is charged.
The scope of prohibited practices under Title VII is broad. The section 706(a) requirement that charges state the facts on which they are based must accordingly be given a flexible interpretation as applied to allegations of different unlawful employment practices. If a charging party is alleging a specific incident as a violation of Title VII, such as denial of a requested promotion or the termination of his employment, it may be appropriate to require some degree of specificity of the charge's allegations. However, sophisticated general policies and practices of discrimination are not susceptible to such precise delineation by a layman who is in no position to carry out a full-fledged investigation himself. If a respondent employer's policy is to initiate promotions without requiring applications from its employees, there may be no specific denial of promotion that an aggrieved charging party can point to. Long observation of plant practice may bring the realization that he and his black coemployees are not getting anywhere. Charging parties in such cases should not be called upon to specify the dates when raises should have been granted or when promotions were offered to whites but not to equally qualified blacks. This is precisely the type of information that the EEOC was empowered to ascertain from company records by utilization of its subpoena powers under sections 709
The allegations of Price's charge are quite sufficient to inform the EEOC of what practices it is to investigate and notify the respondent of the alleged practices it will be called upon to defend. The charge does not simply allege in conclusory terms the existence of Title VII violations, but specifies the existence of a discriminatory promotion policy, racially classified jobs, and specific segregated
The Sixth Circuit has recently given the specificity provision of section 706(a) the same interpretation we do. Bowaters Southern Paper Corp. v. Equal Employment Opportunity Commission, 428 F.2d 799 (6th Cir. 1970), involved a Demand enforcement proceeding pursuant to the investigation of a charge filed by an EEOC Commissioner.
Id. at 800.
In response to the argument that this charge was not sufficiently specific, the court stated, "In fact, it is difficult to see what additional information the Commissioner should set forth as facts supporting his charge." Id. at 800. We concur and note as well that if the argument of Graniteville and the Bowaters Southern Paper Corporation were accepted, charges initiating EEOC investigations would be held to a significantly higher standard than complaints filed in federal court by the Attorney General in Title VII civil actions.
Scope of the EEOC Investigation
The District Court asserted that:
Our reading of the legislative history does not support this conclusion but suggests, on the contrary, that the investigatory powers of the EEOC were intended to equal in scope those granted the National Labor Relations Board under the Taft-Hartley Act, 29 U.S.C. §§ 151 et seq., 161.
As passed by the House, section 709(a) used the clause "that relates to any matter under investigation or in question," for which the Senate substituted "that relates to unlawful employment practices covered by this title and is relevant to the charge under investigation." The original language, taken verbatim from the Taft-Hartley Act, 29 U.S.C. § 161(a), was intended by its authors to encompass the same powers granted the NLRB.
Turning now to section 710, this provision underwent a more sweeping revision in the Senate. The House version would have incorporated by reference the provisions of sections 9 and 10 of the Federal Trade Commission Act, 15 U.S. C. §§ 49 and 50. The Senate substituted language as subsection 710(a) parallel to subsection 709(a) and spelled out in subsections 710(b) through 710(d) the means of enforcement of Commission Demands for Access to Evidence. The result was to narrow the Commission's powers by removing criminal penalties in connection with the subpoena power and denying the Commission power to compel incriminating evidence in exchange for grants of immunity.
Graniteville further maintains that the language of the Senate amendments itself evidences an intent to restrict the scope of the subpoena powers afforded by the House version of Title VII. Specifically,
We think the change in language was simply designed to emphasize the inability of the EEOC to undertake an investigation in the absence of a previously filed charge — a requirement already stipulated by the bill's sponsors, as is made abundantly clear by the statement of Senators Clark and Case as bipartisan floor managers for Title VII in the Senate.
Aside from the language and legislative history of the investigatory powers provision of Title VII, the District Court reasoned that because the Commission's only tools of enforcement are voluntary conference, persuasion, and conciliation, it is not a regulatory body as the NLRB is and "should not be supposed to possess the same broad powers of investigation." To the contrary, unlike the NLRB, which has the assistance of high-priced union and employer lawyers, each anxious to prove the justice of his client's case, the EEOC was intended to carry the full burden of investigating minimally informative charges filed by unrepresented lay-complainants. It seems to us, rather, that the EEOC should be supposed to possess powers at least as broad as those granted the NLRB to enable the Commission to compensate for the absence of a documented legal brief from the charging party. We would align ourselves with the Third Circuit in concluding that
The only remaining question is whether the information sought by the EEOC in this case is relevant or material to the charge being investigated. We disagree with the conclusion of the court that the EEOC investigation "exceeds the reasonable scope of its authority." The Commission, already provided with a computer list of all employees working in the Sibley Mill, sought the dates of hire for all employees hired since July 1, 1965, the job classification into which each employee was initially hired, and a key to the number code used in the computer list to identify department and job classification assignments. Supplying the computer list with its code designations, while withholding the key, rendered that nominal compliance meaningless. Viewing the question more broadly, the information sought is all highly relevant and material to a charge alleging
Even had Price limited his charge to allegations of personal discrimination or departmental discrimination we would hesitate to characterize the desired information as irrelevant and immaterial. Evidence of plant-wide discrimination seems most relevant to a charge that a particular department adheres to a discriminatory policy or that particular action taken was racially motivated. We note with approval the interpretation of a leading commentator on Title VII:
And we agree wholeheartedly with the recent opinion of the Sixth Circuit in Blue Bell Boots, Inc. v. Equal Employment Opportunity Commission, 418 F.2d 355, 358 (6th Cir. 1969):
In the instant case, the EEOC Cross-Petition for Enforcement of its Demand should have been granted.
Reversed and remanded for further proceedings consistent with this opinion.
BOREMAN, Circuit Judge (dissenting):
I. THE INVESTIGATORY POWERS OF THE EEOC
The investigatory powers of the Equal Employment Opportunity Commission are granted by §§ 709 and 710 of Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e et seq.:
The majority apparently holds that Congress intended that these sections give the EEOC investigatory powers equal in scope to those granted the National Labor Relations Board under the
The majority further shows that Section 710, as originally passed by the House, would have incorporated the provisions of Sections 9 and 10 of the Federal Trade Commission Act, 15 U.S.C. §§ 49 and 50, but that the Senate spelled out in subsections 710(b) through 710(d) the means of enforcement of demands for evidence by the Commission, with the result that these powers were narrowed.
Legislative history regarding the House version of these subsections does not persuade me that 709(a) and 710(a) give the EEOC any more power to conduct investigations than the language of these subsections plainly states; the intentions of the House are of minimal significance since it was the Senate version of both subsections which finally became law. Subsection 709(a) was revised by the Senate to require that evidence demanded be relevant to the charge under investigation, and subsection 710(a) was revised to require that evidence demanded be relevant or material to the charge under investigation. The language is plain and is clearly restrictive of the scope of the Commission's investigatory powers. It has been noted that "the statute leaves much to be desired in clarity and precision."
II. THE PROPRIETY OF A HEARING
Taking into consideration the existence of this restriction on the scope of the investigatory powers of the EEOC as opposed to the powers of the NLRB, it becomes necessary to look to the posture of the case before the district court. The Commission had served Graniteville with a demand for (1) the key to a number code indicating the department and job classification assignments of all employees of the Sibley Mill as used in a computer list which already had been supplied; (2) a list showing the date of hire of all employees on the computer list hired subsequent to July 1, 1965; and (3) a list showing the job in which each employee on the list had been initially hired. Graniteville had given the Commission similar information with regard to the department in which Price had worked, but the Commission wanted this evidence with respect to all the departments at the Sibley Mill. Graniteville balked at this request, filed a Petition to Set Aside the Demand, and the EEOC cross-petitioned for enforcement. Thus, it was incumbent upon the district court to determine whether the information sought was within the scope of the Commission's investigatory power. To do so, it was necessary to refer to the charge because the statute expressly requires information sought to be relevant to the charge. The district court properly stated in its order:
The charge in this case was, however, couched in broad and general terms. The evidence demanded could well have appeared to the court below as possibly relevant to three of the four substantive allegations made: (1) that Negroes were discriminated against in promotion policies; (2) that Negroes were harassed, placed in fear of job loss, and subjected to conditions different from those of white employees; and (3) that Negroes were hired for traditionally Negro jobs. However, no specific facts upon which these charges were based were alleged, and Graniteville challenged the relevance of the demands for information with respect to these allegations. A hearing was ordered to determine these facts.
My brothers assert that the hearing below involved a "general inquiry into the sufficiency of the evidence" supporting the charge and that it required the EEOC to make a premature showing of reasonable cause to believe that the charge was true. I disagree. The majority's conclusion results from a failure to distinguish between an allegation of fact and a conclusion, and to analyze properly the contents of a charge.
Allegations of fact may be of two types — specific or general. The statement, "I was refused a promotion" is an allegation of fact in specific terms. The claim that "Negroes are refused promotions" is also an allegation of fact, but in the broadest form; it implies more than one specific occurrence, all of which may vary widely in nature and context.
A charge filed with the EEOC is, of necessity, a combination of allegations of fact, general and/or specific, and a conclusion drawn therefrom. The complaining party may allege certain facts which were manifestations of an unlawful (discriminatory) policy. Where, as here, the facts alleged are of a general and unspecified nature and are properly challenged as having no specific components to which the evidence demanded is relevant, a hearing to determine more precisely the basis of the charge would not infringe upon the authority of the Commission to determine whether the allegations of fact were supported and whether there was reasonable cause to believe that the specific occurrences were the result of an unlawful and discriminatory employment policy.
The majority prudently states, "[S]ophisticated general policies and practices of discrimination are not susceptible to * * * precise delineation by a layman who is in no position to carry out a full-fledged investigation himself. * * * Charging parties * * * should not be called upon to specify the dates when raises should have been granted or when promotions were offered to whites but not to equally qualified blacks." However, fairness indicates, and the statutory language demands, that when challenged to do so the complaining party must show a reasonably specific basis in fact sufficient to establish the relevance of the information demanded. I am not persuaded that a hearing held for this purpose was error.
III. THE HEARING BELOW
Price's testimony at the hearing in the district court does not support granting the Commission's demand for evidence in this case. Price had charged that Negroes were hired for traditionally Negro jobs. It would seem that this can be a charge of discriminatory hiring practices only in the implication that Negroes were not hired for traditionally "white" jobs, but Price had apparently
For the reasons stated above, I would remand to the district court with instructions to further investigate the precise nature of the factual basis of Price's charge.
I, therefore, respectfully submit a statement of my views and the points of my disagreement with the majority.
It shall be an unlawful employment practice for an employer —
(a) In connection with any investigation of a charge filed under section 2000e-5, the Commission or its designated representative shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this subchapter and is relevant to the charge under investigation.
(a) For the purposes of any investigation of a charge filed under the authority contained in section 2000e-5 of this title, the Commission shall have authority to examine witnesses under oath and to require the production of documentary evidence relevant or material to the charge under investigation.
We do not agree that the emphasized language is directed to the substantive scope of the Commission's investigatory powers. The powers narrowed by the amendment were only those involving criminal sanctions for noncompliance and compelling of incriminating evidence.