EEOC Compliance Manual § 20.9, CCH EEOC Compliance Manual P 769.
Here, however, the entire faculty in the School of Nursing is female and information beyond the School of Nursing may be crucial to the EEOC's determination of probable cause. See Rich v. Martin Marietta Corp., 522 F.2d 333, 344 (10th Cir. 1975) (requested information on plant-wide basis was relevant since it might be crucial to establishing prima facie case).
We are cited the opinion of Judge Barron P. McCune of this Court in Hopewell v. University of Pittsburgh, 79 F.R.D. 689, 694 (W.D.Pa.1978), which rejected a comparison of non-comparable groups. In addition, the University cited several cases which have rejected comparisons of faculty jobs in one school with those of different schools. We agree with the approach in those cases. However, each case involved a finding by the court on the merits of the case that the plaintiff failed to establish the equality of one teaching position vis-a-vis another.
As previously noted, the Court's function in a subpoena enforcement proceeding is to determine the relevancy of the requested material. Here, the EEOC seeks salary and related information of male and female professors in the allied health schools. It is true that faculty members of different schools may not be fungible but this does not mean that the Court can rule at this point that the information is irrelevant. As noted by the EEOC in its brief "whether information pertaining to one school may aid in an investigation of another school is a matter which cannot be determined until the information is examined." We cannot take the word of the University nor does it arise from the evidence, that the statistics requested will be meaningless. In this regard, we are reminded by Judge Barrett of the Tenth Circuit in EEOC v. University of New Mexico, 504 F.2d 1296, 1302-03 (10th Cir. 1974), that "the broad sweep of (Title VII) is directed to the elimination of employment discrimination", and the law governing the limits on the administrative power of investigation is not so circumscribed as to prevent the enforcement of subpoenas unless they are plainly incompetent or irrelevant to any lawful purpose. See also EEOC v. Cambridge Tile Manufacturing Co., 590 F.2d 205 (6th Cir. 1979) (Notions of relevancy at investigatory stage are very broad, and so long as EEOC is not wandering into wholly unrelated areas, it has the power to subpoena documents concerning any employer practice which may shed light on discrimination charged).
We note that the charge here is not restricted to the School of Nursing, but its dimensions are University-wide. The EEOC points to the fact that they have not attempted in this subpoena to go University-wide, but only seek information relative to particular schools thought to be of comparative relevance to establish or refute a conclusion that reasonable cause exists to believe discrimination has occurred on a University-wide level, or at a lower level. We do not, at this time, pass upon the University-wide conclusion sought to be established, for that question is not before us.
2. The Subject of the Charge
As previously noted, the University also took the position that the Schools of Health Related Professions, Social Work and Pharmacy, which, in addition to the School of Nursing, were subjects of the subpoena request, were separate and distinct segments of the University and therefore the EEOC had no standing to seek salary information on female faculty members who were not, and could not be, represented by the ANA.
The University claims that the right of an organization to file a charge is derivative of the alleged grievance of its members. The University does not dispute the ability of the ANA to file a charge on behalf of persons "claiming to be aggrieved", but they would limit the effect of the charge to the School of Nursing faculty which, incidentally, are all females.
It is true, for example, that a complainant's charge of race discrimination does not permit the EEOC to investigate sex discrimination. King v. Georgia Power Co., 295 F. Supp. 943 (N.D.Ga.1968), aff'd 412 F.2d 462 (5th Cir. 1969). But this does not mean that the ANA cannot challenge activity which affects its members by a University-wide policy. This is not a situation as revealed in Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972), where the Club failed to allege that its members were adversely affected by the proposed action. Even in the Sierra case, the court recognized that an organization whose members are injured may represent those members in a proceeding for judicial review. The nurses here are allegedly injured by the University-wide policy and the EEOC is conducting the investigation thereon. Therefore, there is no substance to the claim that the EEOC lacks standing to inquire into comparative salaries of other schools, so that the subpoena would be in excess of its statutory authority.
The University raises, but does not strongly argue, that it has no lists or other compilations containing all of the requested data and, therefore, the EEOC requirements would be burdensome to it. It offered no evidence that an excessive burden would be imposed in light of the restriction of the subpoena to the four schools. Furthermore, it is noted that Item 1 of the subpoena states that if the information is not in existence, production of the requested information "as most substantively provides the Commission with that information will be accepted as compliance."
Even if production of evidence imposes some burden, we believe that so long as the information requested is relevant and material, the cost is "part of the social burden" of our present day society, see Bradley Lumber Co. v. NLRB, 84 F.2d 97 (5th Cir. 1936), and may include the compilation of lists prepared from existing records. New Orleans Public Service, Inc. v. Brown, 507 F.2d 160 (5th Cir. 1975). Cf. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 89 S. Ct. 1426, 22 L. Ed. 2d 709 (1969).
4. The Confidentiality and Privilege of the Information Sought
The University takes the position that the EEOC seeks salary and other data which goes to the heart of the relationships with its faculty members in four different schools. They claim that disclosure would do irreparable harm to the University while providing no tangible benefit to the EEOC.
While the information may be extremely important to the University, this argument was not accepted by Judge Barrett in EEOC v. University of New Mexico, supra, where he cogently reasoned that an invocation of the Fourth Amendment prohibition against unreasonable searches and seizures, predicated on the basic proposition that faculty personnel files are confidential, could not be sustained in light of the proscription contained in the statute against public disclosure, in any matter, of information obtained in the course of investigation (42 U.S.C. § 2000e-8(e)). Cf. Couch v. United States, 409 U.S. 322, 93 S. Ct. 611, 34 L. Ed. 2d 548 (1973) (denying a taxpayer's Fifth Amendment claim of privilege in an Internal Revenue investigation based upon the expectation of privacy of records delivered to his accountant for the purpose of preparing his income tax return). Thus, although the information sought may be confidential, this is not a basis for denying enforcement of the subpoena.
C. The Counterclaim
By way of counterclaim, the University seeks a declaratory judgment and an injunction that regulations promulgated by the EEOC permitting disclosure of information obtained during the course of an investigation are void and unenforceable, and seeks an injunction against disclosing any information obtained in this investigation to any person. As noted, Section 709(e) of Title VII, 42 U.S.C. § 2000e-8(e), prohibits any employee of the EEOC, under pain of criminal penalty, from making public any information obtained during the course of any EEOC investigation. Regulations promulgated by EEOC at 29 C.F.R. §§ 1601.22 and 1610.17(d), as implemented in the special disclosure rules of the EEOC Compliance Manual, authorize the EEOC to release information obtained during its investigations to "charging parties, or their attorneys, respondents or their attorneys or witnesses where disclosure is deemed necessary for securing appropriate relief."
Our investigation reveals that the restrictions upon disclosure by EEOC of investigative information contained in §§ 2000e-5(b) and 2000e-8(e) and their effect upon the validity of EEOC's Regulations and Compliance Manual have been considered by four Courts of Appeals with conflicting conclusions. The Fifth Circuit in H. Kessler & Co. v. EEOC, 472 F.2d 1147 (5th Cir.) (en banc) cert. denied 412 U.S. 939, 93 S. Ct. 2774, 37 L. Ed. 2d 398 (1973), held that charging parties and their attorneys are not members of the "public" within the meaning of the restrictive statutory language and consequently the Regulations and the Compliance Manual do not exceed the statute and thus are valid and enforceable. The District of Columbia Circuit in Sears, Roebuck & Co. v. EEOC, 189 U.S. App. D.C. 163, 581 F.2d 941 (D.C.Cir.1978), the Seventh Circuit in Burlington Northern, Inc. v. EEOC, 582 F.2d 1097 (7th Cir. 1978), cert. denied 440 U.S. 930, 99 S. Ct. 1267, 59 L. Ed. 2d 486 (1979), and the Fourth Circuit in EEOC v. Joseph Horne Co., 607 F.2d 1075 (4th Cir. 1979), reached the opposite conclusion. The Third Circuit has not considered this problem.
The analysis of the legal arguments, the legislative history and the policy considerations on both sides of the question are fully developed in Kessler, Sears, Burlington, and Horne : further argument will accomplish little.
In our opinion, the statutory scheme of enforcing Title VII is consistent with the position taken under 29 C.F.R. § 1610.17(d), that individual charging parties are not members of the public within the meaning of Section 709(e). We will therefore direct that the EEOC shall make no disclosure of the investigative material except in accordance with the above cited regulations. The subpoena subject to the protective order as above indicated, will be enforced.
An appropriate order will be entered.
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