Title VII prohibits disclosure to the public of charges filed with the EEOC, and of information obtained in the agency’s investigation of charges, prior to the institution of a suit under Title VII involving such information. See 42 U.S.C. §§ 2000e-5(b), 2000e- 8(e); 29 C.F.R.§1610.17(b), (c).1 After a lawsuit has been filed, professional ethics rules impose limitations on publicity regarding the case. This portion of the Manual discusses the type of information discloseable during litigation and the procedures to follow in disseminating that information to various outside sources.
American Bar Association Model Rule of Professional Conduct 3.6, Trial Publicity, addresses the type of information appropriate to disclose about a case in litigation. Center for Professional Responsibility, American Bar Association, Model Rules of Professional Conduct 83-86 (2004 ed.); see Center for Professional Responsibility, American Bar Association, Annotated Model Rules of Professional Conduct 373-79 (5th ed. 2003). In sum, the rule provides that a lawyer participating in litigation of a matter should refrain from making extrajudicial statements that the lawyer knows or reasonably should know will become public information and will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Comment  to Rule 3.6 lists subjects that are more likely than not to materially prejudice a proceeding, particularly where there will be a jury trial. These include: statements relating to the character, credibility, reputation, or criminal record of a party or witness; statements regarding the expected testimony of a party or witness; or information that is likely to be inadmissible as evidence and that if disclosed would create a substantial risk of prejudicing an impartial trial. Model Rule 3.6 expressly permits, notwithstanding possible prejudice, a statement of the claim or defense involved, information in a public record, the scheduling or result of any step in litigation, and requests for assistance in obtaining information.
The great majority of jurisdictions have adopted some version of the Model Rules of Professional Conduct. A few states have retained a version of the earlier and stricter Trial Publicity rule from the Model Code of Professional Responsibility, Disciplinary Rule 7-107(G), which prohibits extrajudicial statements, other than a quotation from or reference to public records, that could become public information and that relate to, among other matters, the following: evidence regarding the occurrence or transaction involved, the character or credibility of a party, the lawyer's opinion regarding the merits or defenses of a party, or "[a]ny other matter reasonably likely to interfere with a fair trial of the action." Center for Professional Responsibility, American Bar Association, Model Code of Professional Responsibility and Code of Judicial Conduct 77 (1986). Thus, in these jurisdictions press releases about new case filings should contain only information contained in the complaint or elsewhere in the public record.
The above ethical rules apply to both written and oral comments about a case. EEOC attorneys should be familiar with the rules applicable in the jurisdictions in which they litigate.2 When in doubt, consult with the Associate General Counsel, Litigation Management Services (LMS), or your LMS liaison before making any statements.
If you would like to include a quote from the Chair in a press release (whether on a new case being filed or a lawsuit resolution), contact the Office of Communications and Legislative Affairs (OCLA) or the Chair's office for assistance and/or approval prior to issuance. You should allow at least 2 business days to obtain an approved quote. Similarly, if you would like a quote from the General Counsel, contact your LMS liaison.
Give appropriate attention to the privacy concerns of the charging party and other victims of the alleged discriminatory conduct when drafting a press release, particularly in sexual harassment, disability, or other cases where the conduct or the victim's condition could cause the public to view the victim unfavorably. Unless you have the express consent of the individual, do not include the name or other personally identifying characteristics of a victim of discrimination in a press release.
Below are the procedures that OGC headquarters and field legal unit employees are to follow in handling inquiries from members of Congress, congressional staff including staff of congressional agencies (except the General Accounting Office, inquiries from which always should be referred to the agency point of contact), reporters and other media professionals, and the general public, including interest group representatives. In all situations, if a matter appears particularly sensitive during your conversation with an outside source, you should discuss it with the Office Director and inform the Associate General Counsel, LMS, or your LMS liaison, and OCLA.
Routine congressional and White House inquiries received by field offices – e.g., questions about a case in litigation or the agency’s procedures – should be handled directly by the office. Be sure to inform the Office Director about such inquiries and the legal unit’s responses. Other inquiries, whether by telephone or mail, should be referred to OCLA's Legislative Affairs Staff. Phone calls that OCLA should respond to may be handled either by transferring the call to 202-663-4900 or by taking a message, including the caller's name, office, phone number, and nature of the call, and relaying it to the Legislative Affairs Staff Director.
If in regard to an inquiry made or referred to OCLA, congressional staff need to speak directly with personnel in OGC-HQ or a field legal unit, OCLA will contact the Deputy General Counsel or the Regional Attorney of the field office involved about the inquiry.
The above procedures for responding to congressional inquiries should be followed with respect to inquiries from news reporters or other media representatives, except that OCLA referrals should be to OCLA's Communications Staff. All contact with national media sources, e.g., The New York Times, The Washington Post, The Wall Street Journal, Time, Business Week, and nationally broadcast television and radio news and news magazine programs, should be coordinated with OCLA's Communications Staff. Set out below are guidelines for OGC staff in responding to media inquiries:
Attorneys may refer any phone call or letter requesting publicly disseminated publications and information to OCLA's Communications Staff for handling. Also, requests for statistics from the National Data Base should be forwarded to OCLA. However, in keeping with EEOC’s Customer Service initiatives, simple requests from the general public may be processed more efficiently by the office that receives the request. Phone requests for EEOC public information documents (e.g., posters, brochures, pamphlets) may be referred to the agency’s Publications Distribution Center’s (PDC) toll free number: 1-800-669-3362 or the TTY number for the hearing impaired, 1-800-800-3302. You may also refer callers to the agency’s web site at www.eeoc.gov for a listing of all publications available through the PDC, many of which are on the web site.
Requesters seeking written legal interpretations from the Commission should be referred to the procedures in the Commission’s regulations, 29 C.F.R.§§1601.91-93. An attorney responding verbally to a request for legal information, should begin by stating that she cannot give legal advice. It is appropriate to discuss the laws the Commission enforces and the agency's procedures and to refer individuals to specific cases that are part of the public record. Members of the public can also be referred to the EEOC Web site, which contains the text of the statutes the agency enforces, agency regulations, policy guidance, press releases and much additional information about employment discrimination laws and the agency’s enforcement activities.
OCLA and OGC-HQ must receive advance notice when a lawsuit is about to be filed to enable staff to prepare for inquiries about the suit. Thus, at least 2 full days prior to filing suit, legal units should e-mail a draft press release to the Director of Communications in OCLA (or other contact person in that office) and to your LMS liaison, both of whom will verify receipt. OCLA or OGC will contact you if there are any questions or concerns about the content of the draft release. When the legal unit anticipates that a lawsuit will receive national attention or significant local publicity, you should notify OGC-HQ and OCLA as far in advance as possible of your intention to file suit.
To ensure that OCLA does not inadvertently publicize a case before it is filed, advance copies of press releases must be in the following format: (1) not on letterhead, (2) not dated, and (3) with “DRAFT” printed on the top of the press release. Only after suit is filed can OCLA include the press release in the daily News Clips and respond to inquiries from the public. Before the suit is filed, disclosure of information about the case is prohibited by statute. See 42 U.S.C. §§ 2000e-5(b), 2000e-8(e); 29 C.F.R. §1610.17(b), (c).
Once a suit is filed, a final version of the press release should be e-mailed to OCLA and your LMS liaison. To distinguish this press release from the advance notice release, it should be (1) on press release letterhead, and (2) dated (with the draft notation eliminated). OCLA will include this version in the Clips. Send the final press release to OCLA and OGC-HQ the same day that you issue the press release from your office.
It is not necessary to inform OGC-HQ and OCLA of every case resolution in advance. However, if the following circumstances apply, you must provide OGC-HQ and OCLA with as much advance notice as possible that the case is nearing resolution, and you should maintain contact until there is a date certain and the press release is issued:
OGC authorization to finalize a suit does not in itself constitute this notice if the timing for finalizing the settlement is uncertain when OGC authorization is granted.
For those cases filed and resolved under Regional Attorney authority, notice of impending significant resolutions is especially important because OGC-HQ may not have had any advance notice that a settlement is about to occur. Notice that settlement negotiations are ongoing does not constitute notice that a case resolution is about to be finalized. Even when you do not have a date certain, as resolution approaches, e.g., when the parties have agreed in principle and the legal unit is preparing final settlement documents for the court’s approval, bring the impending resolution to the attention of OGC-HQ and OCLA.
Before submitting settlement papers to the court for approval of a significant resolution, notify your LMS liaison and OCLA. Courts have sometimes approved a settlement virtually on the spot, taking the field office, OGC-HQ, and OCLA by surprise.
E-mail final press releases on all settlements and favorable court resolutions to your LMS liaison and OCLA the same day you issue the press release from your office.
Field offices must obtain advanced approval for all press conferences from OGC-HQ and OCLA.
Use discretion in recommending press conferences; they should be held sparingly. In most cases, a press release and thorough followup with the media is the appropriate means for communicating “newsworthy” EEOC litigation activity. Press conferences should be reserved for cases that have significant public interest implications. Be sure the importance of the information to be announced rises to the level of the need for a press conference.
If you receive calls from Commissioners or other non-OGC headquarters personnel requesting participation in a press conference, please refer the call to the Office of the Chair, which will determine how the field office should proceed on the matter. To facilitate coordination, please also notify the Associate General Counsel, LMS, of such calls.
Substantial advance notice of impending significant resolutions will of course facilitate the Commission’s ability to conduct successful press conferences in those cases warranting high profile publicity.
2Also keep in mind that a court could apply stricter standards to government attorneys. See Restatement (Third) of the Law Governing Lawyers § 109 cmt. e (2000) (“Lawyers who serve as prosecutors or otherwise as government lawyers have significantly diminished free-expression rights to comment publicly on matters in which they are officially involved as advocates. Accordingly, prohibitions against pretrial and trial comment by such lawyers can be more extensive.”)