JUSTICE MARSHALL delivered the opinion of the Court.
Section 707(e) of Title VII of the Civil Rights Act of 1964, as amended, authorizes the Equal Employment Opportunity Commission (EEOC) "to investigate and act on a charge" that an employer has engaged in "a pattern or practice" of employment discrimination. Section 706(b) and regulations promulgated thereunder govern the form and content of such a charge and the manner in which the employer should be notified of the allegations of wrongdoing contained therein. The question presented in this case is how much information must be included in the charge and provided to the employer before the Commission may secure judicial enforcement of an administrative subpoena compelling the employer to disclose personnel records and other material relevant to the charge.
On September 27, 1979, Commissioner Eleanor Holmes Norton, then Chair of the EEOC, issued a sworn charge, alleging that respondent, Shell Oil Co., "has violated and continues to violate Sections 703 and 707 of the Civil Rights Act of 1964, as amended, by discriminating against Blacks and females on the basis of race and sex with respect to recruitment, hiring, selection, job assignment, training, testing, promotion, and terms and conditions of employment." App. to Pet. for Cert. 44a. The charge specified respondent's Wood River Refinery as the locale of the alleged statutory violations. In addition, the charge identified six occupational categories access to which had been affected by racial discrimination and seven occupational categories access to which had been affected by gender discrimination.
In the course of discussions with the EEOC over the next several months, respondent took the position that "the charge that has been issued is not supportable by the facts." App. 91. In defense of that position, respondent identified a "multi-county area" surrounding the Wood River Refinery
The EEOC took the position that, until it had more evidence, it could not evaluate respondent's contention that the proper labor market constituted not the St. Louis Standard Metropolitan Statistical Area but, rather, the smaller area proposed by respondent. Id., at 95. In answer to respondent's arguments concerning the numbers of Negroes and women employed at the refinery, the EEOC referred respondent to § 16.2 of the EEOC Compliance Manual, which sets forth the standards the Commission has adopted for selecting employers suspected of engaging in systemic employment discrimination. One of the groups targeted for investigation under that provision consists of "employers . . . who employ a substantially smaller proportion of minorities and/or women in their higher paid job categories than in their lower paid job categories."
When respondent persisted in its refusal to provide the requested data, the EEOC issued a subpoena duces tecum, directing respondent to turn over certain information pertaining to its employment practices from 1976 to the present. In accordance with Commission regulations, respondent petitioned the District Director of the EEOC to revoke or modify the subpoena. The District Director altered the subpoena in one minor respect, but otherwise denied relief. The General Counsel of the Commission upheld the decision of the District Director and ordered respondent to comply with the subpoena by September 18, 1980.
Instead of complying, respondent filed suit in the District Court for the Eastern District of Missouri to quash the subpoena and enjoin the Commission's investigation. Respondent alleged, inter alia, that the subpoena was unenforceable because the Commission had failed to disclose facts sufficient to satisfy the mandate of § 706(b) of Title VII, 86 Stat. 104, 42 U. S. C. § 2000e-5(b). Subsequently, Commissioner Norton amended the charge to allege that respondent "had engaged in the identified unlawful employment practices on a continuing basis from at least July 2, 1965, until the present."
The District Court denied respondent's request to block the Commission's inquiry into respondent's records and enforced the subpoena. 523 F.Supp. 79 (ED Mo. 1981). The court reasoned that "[t]he purpose of a charge under section 706 . . . is only to initiate the EEOC investigation, not to state sufficient facts to make out a prima facie case." Id., at 86. On that basis, the court rejected respondent's argument "that the Commissioner's charge does not specify sufficient facts." Ibid.
A panel of the Court of Appeals reversed. 676 F.2d 322 (CA8 1982). The court found that the EEOC had failed to comply with either the provisions of § 706(b) governing the specificity of the notice given an accused employer or the Commission's own regulations governing the contents of a charge. Id., at 325. The court held that the charge and the notice thereof "should at least inform the employer of the approximate dates of the unlawful practices" and should include enough other information to show that those dates have " `some basis in fact.' " Ibid. (quoting EEOC v. K-Mart Corp., 526 F.Supp. 121, 125 (ED Mich. 1981). In addition, the charge and notice should contain a "statement of the circumstances" of the alleged statutory violations "supported by some factual or statistical basis." 676 F. 2d, at 325-326.
We granted certiorari to resolve the confusion in the Courts of Appeals concerning the material that must be included in charges of employment discrimination and notices thereof before the EEOC may obtain judicial enforcement of an administrative subpoena.
Title VII of the Civil Rights Act of 1964, as amended,
In its current form, Title VII sets forth "an integrated, multistep enforcement procedure" that enables the Commission to detect and remedy instances of discrimination. See Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 359 (1977). The process begins with the filing of a charge with the EEOC alleging that a given employer
Prior to 1972, different statutory requirements governed charges filed by aggrieved individuals and charges filed by Commissioners. Aggrieved parties were required simply to state their allegations "in writing under oath." Pub. L. 88-352, § 706(a), 78 Stat. 259. By contrast, a Commissioner could file a charge only when he had "reasonable cause to believe a violation of [Title VII] ha[d] occurred," and was obliged to "se[t] forth the facts upon which [the charge was] based." Ibid.
As originally enacted, Title VII required the EEOC to provide a copy of a charge to the employer accused of discrimination, but did not prescribe any time period within which the copy was to be delivered. Pub. L. 88-352, § 706(a), 78 Stat. 259. In 1972, Congress altered that provision to require the Commission to "serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on [the] employer . . . within ten days" of the filing of the charge. 42 U. S. C. § 2000e-5(b).
After a charge has been filed, the EEOC conducts an investigation of the allegations contained therein.
At issue in this case is the relationship between three of the steps in the integrated procedure just described: the charge; the notice given to the employer of the allegations against him; and the judicial enforcement of an administrative subpoena of personnel records relevant to the allegations. It is apparent from the structure of the statute that two of those steps — the charge and the subpoena — are closely related. As indicated above, the EEOC's investigative authority is tied to charges filed with the Commission; unlike other federal agencies that possess plenary authority to demand to see records relevant to matters within their jurisdiction,
The legislative history makes clear that this limitation on the Commission's authority is not accidental. As Senators Clark and Case, the "bipartisan captains" responsible for Title VII during the Senate debate, explained in their Interpretative Memorandum:
When Congress in 1972 revamped Title VII, it retained the provision linking the Commission's investigatory power to outstanding charges, and nothing in the legislative history of the 1972 amendments suggests that Congress intended to expand the range of materials to which the Commission could demand access.
In construing the EEOC's authority to request judicial enforcement of its subpoenas, we must strive to give effect to Congress' purpose in establishing a linkage between the Commission's investigatory power and charges of discrimination. If the EEOC were able to insist that an employer obey a subpoena despite the failure of the complainant to file a valid charge, Congress' desire to prevent the Commission from exercising unconstrained investigative authority would be thwarted. Accordingly, we hold that the existence of a charge that meets the requirements set forth in § 706(b), 42 U. S. C. § 2000e-5(b), is a jurisdictional prerequisite to judicial enforcement of a subpoena issued by the EEOC.
The relationship between the requirement that an employer be notified promptly of allegations against it and the EEOC's subpoena power is less clear. The statutory provisions that define the Commission's investigative authority do not mention the notice requirement. See §§ 2000e-8, 2000e-9. And nothing in the legislative history of the sharpened notice provision that was added to § 706 in 1972 suggests that Congress intended or assumed that compliance therewith was a prerequisite to judicial enforcement of the
For two reasons, however, we decline to decide that troublesome question in this case. First, all of the parties have assumed that noncompliance with the notice requirement is a legitimate defense to a subpoena enforcement action.
The statute itself prescribes only minimal requirements pertaining to the form and content of charges of discrimination. Section 706(b) provides merely that "[c]harges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires." 42 U. S. C. § 2000e-5(b). However, in accordance with the last-mentioned clause, the EEOC has promulgated a regulation that provides, in pertinent part, that "[e]ach charge should contain . . . [a] clear and concise statement of the facts, including the pertinent dates, constituting the alleged unlawful employment practices." 29 CFR § 1601.12(a)(3) (1983).
There is no question that the charge in this case comported with the requirements embodied in the statute; Commissioner Norton's allegations were made in writing and under oath. The only ground on which the validity of the charge can fairly be challenged is Commissioner Norton's compliance with the Commission's regulation. The Court of Appeals concluded that the charge did not contain enough information to satisfy § 1601.12(a)(3). 676 F. 2d, at 325. To assess that conclusion, we must explicate the crucial portion of the regulation as applied to a charge alleging a pattern or practice of discrimination.
Second, a charge does have a function in the enforcement procedure prescribed by Title VII. As explained above, the Commission is entitled to access only to evidence "relevant" to the charge under investigation. § 2000e-8. That limitation on the Commission's investigative authority is not especially constraining. Since the enactment of Title VII, courts have generously construed the term "relevant" and have afforded the Commission access to virtually any material that
Third, it is crucial that the Commission's ability to investigate charges of systemic discrimination not be impaired. By 1972, Congress was aware that employment discrimination was a "complex and pervasive" problem that could be extirpated only with thoroughgoing remedies; "[u]nrelenting broad-scale action against patterns or practices of discrimination" was essential if the purposes of Title VII were to be achieved.
With these three considerations in mind, we must assess the proffered interpretations of the requirement embodied in § 1601.12(a)(3) that a Commissioner, when filing a "pattern-or-practice" charge, must state "the facts . . . constituting the alleged unlawful employment practices." One reading of the crucial phrase would impose on the Commissioner a duty to specify the persons discriminated against, the manner in which they were injured, and the dates on which the injuries occurred. But such a construction of the regulation would radically limit the ability of the EEOC to investigate allegations of patterns and practices of discrimination. The Commission has developed a complex set of procedures for identifying employers who may be engaging in serious systemic discrimination. See EEOC Compliance Manual § 16 (1981). The Commission staff reviews the annual reports filed by employers with the EEOC and with the Office of Federal Contract Compliance Programs of the Department of Labor and combines those data with information garnered from other sources regarding employers' practices. Id., §§ 16.3(a), (c). If the resulting composite picture of an employer's practices matches one of a set of prescribed standards,
The Court of Appeals adopted a somewhat more moderate construction of the regulation. In that court's view, § 1601.12(a)(3) requires a Commissioner to disclose some portion of the statistical data on which his allegations of systemic discrimination are founded. 676 F. 2d, at 325-326. This interpretation has little to recommend it. The data that undergird the Commissioner's suspicions surely do not "constitute" the alleged unlawful employment practices; the Court of Appeals' proposal is thus unsupported by the plain language of the regulation. More importantly, the court's interpretation is sustained by none of the three pertinent legislative purposes. First, the Court of Appeals' construction would, in effect, oblige the Commissioner to substantiate his allegations before the EEOC initiates an investigation, the purpose of which is to determine whether there is reason to believe those allegations are true. Such an obligation is plainly inconsistent with the structure of the enforcement procedure. Second, disclosure of the data on which the
Rejection of the two proposals just discussed does not imply that a Commissioner should be permitted merely to allege that an employer has violated Title VII. Such a result would be inconsistent with the evident purpose of the regulation — to encourage complainants to identify with as much precision as they can muster the conduct complained of. And it would render nugatory the statutory limitation of the Commission's investigative authority to materials "relevant" to a charge. With these concerns in mind, we think that the
The charge issued by Commissioner Norton, as amended, plainly satisfied the foregoing standards. The charge identified Negroes and women as the victims of respondent's putative discriminatory practices. It specified six occupational categories to which Negroes had been denied equal access and seven categories to which women had been denied equal access.
To make sense of the notice requirement, embodied in § 706(b), in the context of a charge filed by a Commissioner alleging a pattern or practice of discrimination, we must supplement the considerations discussed thus far with some additional principles and policies. Most importantly, we must strive to effectuate Congress' purpose in incorporating into the statute the current notice provision. Though the legislative history is sparse, the principal objective of the provision seems to have been to provide employers fair notice that accusations of discrimination have been leveled against them and that they can soon expect an investigation by the EEOC. Prior to 1972, the EEOC had become prone to postponing until it was ready to begin an investigation the mandatory notification
Respondent suggests that, despite the absence of supportive legislative history, we should infer from the structure of the statute, as amended, an intent on the part of Congress to use the notice requirement to limit the EEOC's ability to investigate charges of discrimination. The purpose of the obligation to inform an employer of the "circumstances" of its alleged misconduct, respondent contends, is to force the EEOC "to state the factual basis for its charge," and thereby
Finally, in explicating the notice requirement, we must keep in view the more general objectives of Title VII as a whole. The dominant purpose of the Title, of course, is to root out discrimination in employment. But two other policies, latent in the statute, bear upon the problem before us. First, when it originally enacted Title VII, Congress hoped to encourage employers to comply voluntarily with the Act. That hope proved overly optimistic, and the recalcitrance of many employers compelled Congress in 1972 to strengthen the EEOC's investigatory and enforcement powers.
With these considerations in mind, we turn to an assessment of the competing interpretations of the notice provision. It would be possible to read the requirement that the employer be told of "the date, place and circumstances of the alleged unlawful employment practice" as compelling a specification of the persons discriminated against, the dates the alleged discrimination occurred, and the manner in which it was practiced. We reject that construction for the same reason we rejected an analogous reading of 29 CFR § 1601.12 (a)(3) (1983) pertaining to the contents of charges: it would drastically limit the ability of the Commission to investigate allegations of systemic discrimination, and therefore would be plainly inconsistent with Congress' intent. See supra, at 70-71.
A more moderate construction of § 706(b) would require the Commission to include in the notice given to the employer
Respondent asks us to read the statute to require the EEOC to supplement notification of the kind just described with a summary of the statistical data on which the Commissioner's allegations are founded. We decline the invitation. The data relied upon by the Commissioner are not easily encompassed by the phrase, "date, place and circumstances of the alleged unlawful employment practice"; thus, the plain language of § 706(b) provides little support for respondent's proposed construction. More importantly, respondent's interpretation
Accordingly, we construe § 706(b) to require the Commission, within 10 days of the filing of a charge, to reveal to the employer all of the information that must be included in the charge itself under the current version of 29 CFR § 1601.12(a)(3) (1983). Because respondent was provided with a copy of Commissioner Norton's charge 10 days after it was filed with the EEOC, and because the charge itself comported with § 1601.12(a)(3), see supra, at 73, we conclude that the notice provision was satisfied in this case.
For the foregoing reasons, we find that all of the strictures embodied in Title VII and in the regulations promulgated thereunder, pertaining to the form and content of a charge of systemic discrimination and to the timing and adequacy of the notice afforded the accused employer, were adhered to in this case. Consequently, the Commission was entitled to enforcement of its subpoena. The Court of Appeals' judgment to the contrary is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE REHNQUIST join, concurring in part and dissenting in part.
I agree with much of what the Court has written. But the Court has deliberately declined to come to grips with the crucial threshold issue in this case: Is inadequate notice a legitimate defense to a subpoena enforcement action brought by the Equal Employment Opportunity Commission (EEOC or Commission)? If it is not, the Court's concern that a meaningful notice requirement would impede the EEOC's investigations is wholly unfounded. The Court clearly suggests it is inclined to answer the question in the negative, see ante, at 65-66, 75-77, but then proceeds on the assumption that the question has not been properly presented or briefed. I believe the question is before us and should be addressed.
While respondent Shell Oil Co. (Shell) has maintained throughout that a subpoena may not be enforced if the notice filed in connection with the investigation was unlawful, the EEOC has not conceded the point. In connection with the statement cited by the Court ante, at 66, n. 17, the EEOC conceded that questions concerning the adequacy of the notice may be raised at the enforcement proceeding. But I find no clear concession here or in the EEOC's briefs that if
I agree with the Court that a proper charge is a prerequisite to enforcement of an EEOC subpoena. The EEOC has broad flexibility in determining precisely what must be included in the charge. And the charge against respondent Shell was consistent with requirements laid out in the statute and regulations. I therefore agree with the Court's conclusion that the Court of Appeals erred in directing the District Court not to enforce the EEOC's subpoena.
But in my view the Court of Appeals correctly concluded that the notice furnished to Shell was inadequate. The statute makes quite clear that the notice of charge must be more informative than the charge itself. Accordingly, I believe the District Court should enforce the EEOC's subpoena but simultaneously direct the EEOC to furnish Shell with adequate notice of the "date, place and circumstances" of the allegedly unlawful employment practices underlying the charge.
Systemic "pattern or practice" discrimination by an employer triggers four separate but coordinated steps by the EEOC. The requirements and purposes of one of these steps — furnishing the employer with notice of a charge — can be understood only in the context of the other three.
Commission regulations provide that all charges should contain "[a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices . . . ." 29 CFR § 1601.12(a)(3) (1983). But the regulations go on to state:
Thus under both the statute and the regulations a charge may be accepted by the Commission even if it lacks a full description of the "date, place and circumstances" of the alleged unlawful employment practices.
Internal EEOC guidelines set out more specific conditions applicable only to a Commissioner's pattern or practice charges. According to § 16 of the EEOC Compliance Manual (1982), reprinted in App. to Pet. for Cert. 40a-43a, the EEOC looks for employers who meet one of six statistical profiles:
(1) employers "who continue in effect policies and practices which result in low utilization of available minorities and/or women";
(2) employers "who employ a substantially smaller proportion of minorities and/or women than other employers in the same labor market who employ persons with the same general level of skills";
(3) employers who employ "a substantially smaller proportion of minorities and/or women" in their higher paid than their lower paid job categories;
(4) employers who maintain recruitment hiring, assignment, promotion, discharge or other policies not justified by business necessity "that have an adverse impact on minorities and/or women";
(5) employers who utilize restrictive employment practices that "are likely to be used as models for other employers"; or
(6) employers who fail to provide available minorities and women with fair access to employment if the employer has "substantial numbers of employment opportunities."
Members of the EEOC staff compile statistics or other factual materials to identify such patterns. The figures are passed through successive stages of staff review within the Commission and finally presented to an EEOC Commissioner, in the form of a "memorandum detailing information
(2) Notice of the charge. Once a charge has been filed with the EEOC, "the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on [the respondent] . . . within ten days . . . ."
(3) Investigation of a charge. The EEOC has the duty to investigate all charges, 42 U. S. C. §§ 2000e-5(b), 2000e-6(e), and to that end it is vested with broad investigatory power:
Equally important, the EEOC may investigate a pattern or practice charge without making any preliminary finding that there is "reasonable cause" to believe the charge is true. A threshold "reasonable cause" requirement existed before the 1972 amendments,
(4) Disposition of the charge. A "reasonable cause" requirement does however remain applicable at the conclusion of the EEOC's investigation. At that stage the Commission must either dismiss the charge or press for a remedy.
Dismissal is required if "there is not reasonable cause to believe that the charge is true." 42 U. S. C. § 2000e-5(b). Again, prompt notice to the respondent is required. Ibid.
If, on the other hand, the charge appears to be valid, the Commission must first attempt an informal resolution of the problem. "If the Commission determines 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." Ibid.
It is against this statutory background that we must assess the notice the EEOC furnishes to an employer in connection
In my view this brief, formal, and wholly uninformative "charge," appended to an entirely empty "notice," did not comport with the language and purposes of § 2000e-5(b)'s notice requirement. A two-paragraph piece of vacuous legal boilerplate that completely omits the statistical information that the EEOC has in fact relied on in filing the charge serves none of the purposes that underlie the notice requirement.
As a threshold matter, I agree with the Court, ante, at 75-77, that the notice provision is not intended to circumscribe the EEOC's investigative authority. The charge, not the notice of the charge, sets the contours of the investigation. But notice to those who are selected as the targets of a Government employment discrimination investigation has been judged by Congress to be desirable in and of itself.
Second, effective notice may conserve both employer and agency resources by moderating the confrontational posture of the investigation and allowing the employer to explain or clarify its position to the EEOC. In addition, as the Court points out ante, at 79, notice helps to ensure that documents pertaining to the investigation are preserved.
Finally, and perhaps most importantly, the notice requirement serves a purpose that is central to the statutory scheme — encouraging quick, voluntary, and informal resolution of complaints. I agree with the Court that the notice requirement must be construed so as to advance Congress' desire that the EEOC "attempt to resolve disputes through conciliation." Ante, at 78. The Act's overriding goal is not to promote the employment of lawyers but to correct discriminatory practices quickly and effectively. To this end, the EEOC is always required to attempt to resolve charges first through "informal methods of conference, conciliation, and persuasion." 42 U. S. C. § 2000e-5(b). The strict statutory time limits on filing a charge with the Commission, furnishing notice to the respondent of the "date, place and circumstances" of the activities underlying the charge, and
In light of these purposes, I believe that a notice of charge adequately discloses the "date, place and circumstances of the alleged unlawful employment practice" only when it informs the respondent of the complainant's underlying reasons for filing the charge and is sufficient to permit a well-intentioned respondent to undertake immediate remedial measures if the charge is valid. It is here that I part company with the Court. I have no difficulty concluding that the notice of charge served on Shell did not meet these requirements.
The time period referred to in the EEOC's amendment to the charge can only be characterized as chosen to convey as little information as possible. It appears that the EEOC had in fact relied on Shell's employment statistics for 1970-1977, see Reply Brief for Petitioner 4 (filed Feb. 9, 1983), yet it tardily informed Shell that the "date" of the charge encompassed 1965-1981. And the allegations of discrimination in the notice of charge are so broad and unspecific as to be wholly uninformative. It is almost impossible to imagine what specific remedial actions Shell might have initiated in response to this notice of charge. It is unrealistic to expect a large employer like Shell to build a comprehensive and elaborate remedial program around a general accusation that it has failed "to recruit, hire, promote, train, assign or select" minorities and women in essentially all job categories, when in fact the charge of unlawful discrimination is grounded on far more specific and limited information. The employer surely needs to know which are the greatest problem areas, which time periods gave rise to the most troublesome statistical imbalances, what size program will be needed to rectify
The Court's suggestion, ante, at 80, that the employer "cannot plead ignorance of the figures relied upon by the Commissioner" is simply mistaken. The employer supplies only one-half of the relevant figures — its own employment statistics. The EEOC supplies the other half — overall statistics for the employment market from which the employer draws. It is only in a comparison between these two sets of figures that a pattern of discrimination becomes apparent. The relevant employment market for comparison was disputed in this case. It seems extraordinary that the EEOC should decline to provide a market definition and the comparative statistics that it works with when any remedial action must involve recruitment in that same market, at a level tailored to the seriousness of the imbalances that the EEOC believes exist at the outset.
In short, I find the EEOC's insistence on secrecy incomprehensible. The notice of charge served on Shell, and the EEOC's subsequent "stonewalling," do not serve the design and purpose of Congress to encourage prompt, voluntary correction of discriminatory employment practices. The notice and other procedural requirements of § 2000e-5(b) demand that the EEOC start with a more informative approach. There is time enough for litigation if the employer proves recalcitrant. At the outset, the EEOC's main interest should be to encourage voluntary remedial action. The statute unambiguously establishes that as the preferred course.
While the notice of charge to Shell was deficient, the Court of Appeals erred in suggesting that the subpoena should not be enforced until the deficiency had been rectified. Title VII places only minimal limits on the Commission's power to gain
There is no direct link between the EEOC's subpoena powers and its duty to notify employers of filed charges — the notice of charge does not define the permissible scope of an EEOC investigation. The Commission's strong interest in avoiding a "minitrial" on every discovery request makes it inappropriate for the enforcement of § 2000e-8(a) discovery requests to turn, at the outset, on the EEOC's compliance with § 2000e-5(b)'s notice requirement. I agree with the Court, therefore, that the EEOC's subpoena should have been promptly enforced without more ado.
But I agree with the Court of Appeals that the EEOC has failed to comply with the notice-of-charge requirement. Accordingly, since the issue was properly raised, I believe the EEOC should be informed by the District Court that the notice was inadequate, and directed to furnish better notice. In the unlikely event that the EEOC failed or refused to comply with such an order, the District Court might consider appropriate sanctions. 42 U. S. C. § 2000e-9; 29 U. S. C. § 161.
The District Court's power to order proper notice pendent to its enforcement of the EEOC's subpoena cannot be in
Disclosure to the employer of the information relied on by the Commissioner who files a pattern or practice charge does not open the door for litigation by an employer seeking to obstruct or delay the EEOC's investigation: the accuracy or reasonableness of a charge is not a justiciable issue at the investigatory stage. That a charge, or the information on which it is based, is erroneous, inaccurate, incomplete, misleading, false, insufficiently substantiated, outdated, or otherwise unreliable, is not relevant to the enforcement of § 2000e-8(a) subpoenas, providing that the information sought is relevant to the charge filed. The statute is unambiguous: the determination whether there is "reasonable cause" to believe a charge is true is to be made at the conclusion — not at the outset — of an EEOC investigation. With this facet of the law clarified, the EEOC has no legitimate
In my view, a memorandum "detailing information concerning respondent's practices, the reasons for selecting the respondent (including a showing that at least one of the systemic selection standards applies to the respondent), and a description and justification of the proposed scope of the case," see EEOC Compliance Manual § 16 (1982), would more than satisfy the requirement of fair and meaningful notice. The EEOC Commissioners apparently feel the same way when it is they who have to be notified — it is their internal guidelines that require the preparation of such a memorandum before a Commissioner will sign a pattern or practice charge. There is absolutely no need or justification for supplying this information to the complainant but concealing it from the employer, who is most able to take positive and prompt remedial action.
Accordingly, I would vacate and remand with instructions that the subpoena be enforced and that the EEOC be directed to provide Shell with meaningful notice of the date and circumstances of the alleged unlawful employment practices.
"More specifically, the employer's unlawful discriminatory practices include, but are not limited to:
"1. Failing or refusing to recruit, hire, promote, train, assign or select Blacks for managerial, professional, technical, office/clerical, craft, and service worker positions because of their race.
"2. Failing or refusing to recruit, hire, promote, train, select, and assign females to managerial, professional, technical, craft, operative, laborer and service worker positions because of their sex." App. to Pet. for Cert. 44a.
Cf. United States v. Arthur Young & Co., 465 U.S. 805, 814-815 (1984) (adopting a comparably expansive definition of "relevance" in the analogous context of an IRS subpoena, pursuant to 26 U. S. C. § 7602, of workpapers pertaining to an investigation of the correctness of a tax return).
"Recognizing the importance that the concept of due process plays in the American ideal of justice, the committee wishes to emphasize certain provisions which are included in the bill to insure that fairness and due process are part of the enforcement scheme.
"1. . . . The Commission must serve the respondent with a notice of the charge, which would advise the respondent of the nature of the alleged violation. As amended by the committee, the bill would require such notice to be served on the respondent within 10 days." S. Rep. No. 92-415, p. 25 (1971) (emphasis added).
We find respondent's suggestion highly implausible. It is apparent that the oath requirement on its own cannot bind a Commissioner to an objectively verifiable level of suspicion when filing a charge. The function of an oath is to impress upon its taker an awareness of his duty to tell the truth, not to oblige him to plead facts having a prescribed evidentiary value. See E. Cleary, McCormick on Evidence 582 (2d ed. 1972). In the absence of any evidence that Congress understood there to be a link between the requirement that the charge must be "under oath or affirmation" and the new requirement that the notice indicate the "date, place and circumstances of the alleged unlawful employment practice," we decline to posit such an unlikely connection. In sum, we conclude that, by abandoning the "reasonable cause" standard, Congress meant to loosen, not tighten, the constraints on the authority of Commissioners to file charges.
Note that, in this case, the EEOC's efforts to gain access to respondent's records have been stymied for over three years. We do not mean to imply that respondent falls into the category of recalcitrant employers, but the litigation tactics successfully employed by respondent easily could be put to improper ends.
"Whenever it is charged in writing under oath by a person claiming to be aggrieved, or a written charge has been filed by a member of the Commission where he has reasonable cause to believe a violation of this subchapter has occurred (and such charge sets forth the facts upon which it is based) that an employer . . . has engaged in an unlawful employment practice, the Commission shall furnish such employer . . . with a copy of such charge and shall make an investigation of such charge, provided that such charge shall not be made public by the Commission." 42 U. S. C. § 2000e-5(a) (1970 ed.).