In a surprising turnabout attorneys for the Equal Opportunity Employment Commission have recommended that the commission drop plans to file a nationwide job discrimination suit against Sears, Roebuck and Co. because their case is filled with "flaws" and "errors"
The staff recommendation reported by a trade newsletter and confirmed by an EEOC official yesterday, is the latest is a series of see-saw developments in the EEOC's six-year-long investigation into Sears' employment practices.
The commissioners voted 2 to 1 in April 1977 officially to charge Sears with violating the equal employment title of the 1964 Civil Rights Act and to open formal negotiations with the nation's largest retailer. Sears, in turn, filed suit against 10 government agencies, alleging that federal government policies fostered hiring discrimination and created an "unbalanced workforce." Sears' suit was filed largely to head off the expected suit by the EEOC.
Sears attorney Charles Morgan Jr., responding to the report that EEOC attorneys think the case against Sears is weak, said, "That sounds something like what Sears has been saying all along."
According to a memo quoted in the Employment Relations Report, EEOC acting general counsel Issie L. Jenkins recommended that the commission prepare the suit with no intention of filing it, and then use it as a bargaining chip to negotiate a settlement with Sears.
"A settlement . . . will provide a superior remedy to any which we (based on a more complete understanding of the merits of the case. .) believe a court is likely to award," Jenkins said in the June 11 EECO memo.
In anticipation of telephone calls from reporters EEOC chief Eleanor Holmes Norton instructed her staff to say that "the quoted memoranda of the office of general counsel were based on a preliminary review of the data and analysis in this case," and that additional information and further analysis have since been obtained. "As a result, the general counsel later requested that the commission disregard earlier analysis and conclusions."
But a commission source said that there "realy is no new information" and the new further analysis Norton referred to "doesn't change anything" about the case. The source said Norton "is trying to keep the dam from breaking and from preempting her commissioners" since no final decision has been made on proceeding with the suit.
One basis flaw in the EEOC investigation of Sears, according to the memos cited, is that the retailer had voluntarily changed its hiring practices as early as 1969, four years before former EEOC chairman William Brown III launched the massive investigation.
The memo also has Jenkins admitting that in the charge that Sears discriminates against women, the most that could be proved in court would be a few cases of unequal pay, and not the original sweeping charge claiming that Sears systematically relegated women to lower-paying jobs and more clerical and part time work.
According to the memo, the EECO general counsel recommended dropping a number of sex discrimination charges, such as one that claims more women were put in part-time jobs. The attorney noted that the reason for this was that more women ask for part-time work.