The Supreme Court is considering a plea by the Equal Employment Opportunity Commission for review of a ruling that information gathered by the agency in investigating discrimination charges against an employer can't be disclosed by the EEOC to the accuser.
If the ruling is left standing, the commission apparently would be barred from disclosing materials in its investigative file to either the accuser or the employer, even if disclosure would further the mission of conciliation given to the agency by Congress, Solicitor General Wade H. McCree Jr. told the court.
"Moreoever, if the commission cannot reveal material in its investigative file prior to litigation, it might be prohibited from disclosing... the facts that led it to find reasonble cause to believe that the charge is true," McCree said in a petition for review.
The Seventh U.S. Circuit Court of Appeals made the ruling last August in a case involving accusations that Burlington Northern Inc., a conglomerate, engaged in nationwide discrimination against blacks.
The company joined the commission in seeking review of this "important case," noting the possibility of "a real and direct conflict" between the ruling and a 1973 decision by the 5th U.S. Circuit Court of Appeals.
The Burlington case developed several years ago when the EEOC opened a national investigation into possible job discrimination by the company, which cooperated by supplying many records.
While the investigation was under way, two Burlington employes, William McBride and William Butler, obtained the agency's permission to file a private lawsuit in behalf of a nationwide class of blacks who allegedly had been discriminated against.
Later, the two men subpoenaed from the commission all documents in its investigative file. Before the EEOC could comply however, the company sued for an injunction to prevent disclosure of those materials in the file that were relevant to the allegations of discrimination against the whole class. Burlington agreed, however, that the men were entitled to records pertaining to their individual charges.
A federal judge denied relief, but was overruled by the 7th Circuit.
The Civil Rights Act of 1964, as amended in 1972, makes it a criminal offense for any commission employe to "make public" information of the type in question. The central issue is whether litigants McBride and Butler are members of the "public," as claimed by Burlington and the 7th Circuit, or whether they aren't, as claimed by the government.
For the appeals court, circuit Judge Wilbur F. Pell Jr. wrote:
"We think it plain, and the commission does not disagree, that the effect and indeed the purpose, of disclosing investigative materials to charging parties as if they were not members of the public would be to encourage the filing of private lawsuits.
"It is also obvious that this effect will necessarily undercut the preferred enforcement scheme of comprehensive negotiation and settlement, by diffusing the energies of the employer and the EEOC and by injecting possible unnecessary adversariness into the process of dealing with employment practices.
"Moreoever, the disclosure policy, which the commission argues is appropriate, will almost certainly interfere with its ability to obtain voluntary cooperation with its investigative efforts."
Disputing such contentions, Solicitor General McCree argued in the brief for the EEOC that "the term 'public' plainly contemplates disclosure to persons other than the charging party and the employer." The suggestion that disclosure would stir up litigation is "erroneous," he said.