The Equal Employment Opportunity Commission voted last week to proceed with its long-deferred job discrimination suit against Sears, Roebuck and Co., The Washington Post has learned.
But whether the court action will be the one nationwide suit originally intended, or a series of smaller suits against specific Sears outlets, was left to the discretion of the EEOC's general counsel, Leroy Clark.
According to reliable sources, the five commissioners voted Aug. 7 at a closed-door meeting to ignore the advice of their acting general counsel, Issie L. Jenkins, who in a recently disclosed inter-office memo recommended dropping the suit because the EEOC's case was riddled with "flaws" and "errors."
In the Tuesday meeting, the commissioners also urged new general counsel Clark to proceed with the litigation within a reasonable period because, several sources said, they want the long-standing Sears case resolved as fast as possible.
The vote is the latest turn in the EEOC's seven-year job bias investigation of the nation's largest retailer. In April 1977, after four years examining Sears hiring practices, the commissioners voted 2 to 1 (there were only three commissioners then) officially to charge Sears with violating the equal employment title of the 1964 Civil Rights Act.
Specifically, the commission said it found "patterns of sex, race, and national origin discrimination at all levels" of Sears. By law, the commission then had to open formal conciliation talks to negotiate a settlement. When the talks broke down early this year, it appeared likely that the EEOC would take Sears to court and seek what experts guessed might be one of the largest settlements in a job bias case since EEOC's $100 million settlement with American Telephone and Telegraph Co.
But Sears launched a preemptive strike and filed its own suit against 10 federal agencies, charging that government policies and inaction created an "unbalanced workforce" dominated by white males.
When U.S. District Court Judge June L. Green threw out the Sears lawsuit, the way appeared clear for the EEOC suit to proceed. That was the situation when a memorandum leaked to the press this month revealed that some EEOC lawyers thought the case against Sears was too weak to pursue.
One of the lawyers, Acting General Counsel Jenkins, recommended that the commission prepare the suit with no intention of filing it, then use it in bargaining an out-of-court settlement.
"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 told the commissioners in the June 11 memo.
Yesterday, reliable EEOC sources said a memorandum from another EEOC attorney took the exact opposite line - that the case was indeed strong enough and should be pursued in court. That memo was never leaked to the press, so Jenkins' more pessimistic assessment received undue attention, the sources said.
Of the commission's decision to proceed with the suit, Sears attorney Charles Morgan Jr. said, "Folks sue folks every day. Suing is one thing - winning is what matters."