No. 09-3219 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant–Appellant, v. KRONOS INCORPORATED, Respondent–Appellee. _______________________________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania The Honorable Arthur J. Schwab, Presiding _______________________________________________________ REPLY BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, DC 20507 (202) 663-4579 corbett.anderson@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iv INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . .1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . .3 I. The Commission Has the Authority to Conduct an Investigation to Determine Fully the Legality of Kroger's Use of the Kronos Tests and to Broadly Obtain Evidence Relevant to that Determination 3 A. Kronos Mischaracterizes the Record to Argue for an Exceedingly Narrow Interpretation of the Commission's Investigative Authority.. .5 B. Kronos Ignores the Key Fact that the Geographic, Temporal, and Job Parameters of the Commission's Subpoena Are Tailored to Kroger's Use of the Kronos Tests. . . . . . . . . . . . . .9 C. Kronos Misunderstands the Scope and the Relevance of the Impact and Validity Data Sought by the Commission. . . . . . 12 D. The Commission's Expansion of its Investigation to Include the Racial Impact of Kroger's Use of the Kronos Tests is Reasonable Pursuant to the "Root Source" Rationale.. . . . . 14 II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Confidentiality Order is Overbroad and Contrary to FOIA, and Places Untenable Restrictions on the Commission's Legitimate Law Enforcement Activities. 20 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 27 CERTIFICATE OF BAR MEMBERSHIP. . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF IDENTICALLY FILED BRIEFS. . . . . . . . . . . 28 CERTIFICATE OF VIRUS CHECK . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 29 TABLE OF AUTHORITIES Cases Blue Bell Boots v. EEOC, 418 F.2d 355 (6th Cir. 1969). . . . .7 Brown v. Phillip Morris, 250 F.3d 789 (3d Cir. 2001) . . . . 24 Connecticut v. Teal, 457 U.S. 440 (1982) . . . . . . . . . . 20 EEOC v. Associated Dry Goods, 449 U.S. 590 (1981). . . . 20, 25 EEOC v. Astra USA, Inc., 94 F.3d 738 (1st Cir. 1996) . . . . .4 EEOC v. Bailey Co., 563 F.2d 439 (6th Cir. 1977) . . . . . . 16 EEOC v. E.I. DuPont de Nemours & Co., 373 F. Supp. 1321 (D. Del. 1974)7 EEOC v. Franklin & Marshall Coll., 775 F.2d 110 (3d Cir. 1985)3 EEOC v. General Electric Co., 532 F.2d 359 (4th Cir. 1976)4, 15 EEOC v. Roadway Express, Inc., 750 F.2d 40 (6th Cir. 1984) . 19 EEOC v. Shell Oil Co., 466 U.S. 54 (1984). . . . . . . 4, 7, 18 EEOC v. Southern Farm Bureau Cas. Ins. Co., 271 F.3d 209 (5th Cir. 2001)16 EEOC v. Tempel Steel Co., 814 F.2d 482 (7th Cir, 1985) . . . 18 EEOC v. United Parcel Service, Inc., 587 F.3d 136 (2d Cir. 2009)10, 18 General Telephone Co. v. EEOC, 446 U.S. 318 (1980) . . . 11, 15 Hicks v. ABT Assoc. Inc., 572 F.2d 960 (3d Cir. 1978). . . 4, 7 Hohider v. United Parcel Service, Inc., 574 F.3d 169 (3d Cir. 2009)10 Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994). 24 Statutes 18 U.S.C. § 1905 . . . . . . . . . . . . . . . . . . . . . . 20 42 U.S.C. § 12112(6) . . . . . . . . . . . . . . . . . . . . 14 42 U.S.C. § 12112(7) . . . . . . . . . . . . . . . . . . . . 14 5 U.S.C. § 552 . . . . . . . . . . . . . . . . . . . . . . . .2 5 U.S.C. § 552a(b) . . . . . . . . . . . . . . . . . . . . . 17 Regulations 29 C.F.R. § 1601.9.. . . . . . . . . . . . . . . . . . . . . .6 29 C.F.R. § 1601.12. . . . . . . . . . . . . . . . . . . . . .6 29 C.F.R. § 1601.12(a)(3). . . . . . . . . . . . . . . . . . .7 29 C.F.R. § 1607.4 . . . . . . . . . . . . . . . . . . . . . 14 29 C.F.R. § 1610.19(e) . . . . . . . . . . . . . . . . . . . 23 Rules Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . 28 Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . 28 Fed. R. App. P. 32(a)(7)(B)(ii). . . . . . . . . . . . . . . 28 Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . . 28 L.A.R. 31.1(c) . . . . . . . . . . . . . . . . . . . . . 28, 29 LAR 28.3 . . . . . . . . . . . . . . . . . . . . . . . . . . 28 INTRODUCTION As the U.S. Equal Employment Opportunity Commission ("EEOC" or "Commission") argued in its opening brief ("EEOC Opening Br."), the charge under the Americans with Disabilities Act of 1990 ("ADA") which triggered the EEOC's investigation in this matter, and the information obtained in the investigation's early stages, support enforcement of the EEOC's subpoena because it seeks materials relevant to Vicky Sandy's charge and relevant to a reasonable expansion of the EEOC's investigation triggered by that charge. Kronos Incorporated ("Kronos") administers and scores personality tests for Kroger Food Stores ("Kroger"). Given the evidence that Kronos's tests played a role in Sandy not being hired and that Kroger used the test nationally and for a broad range of jobs, the subpoena's scope – in terms of its temporal, geographic, and job parameters – naturally corresponded to the actual use and application of the test by Kroger. As such, the subpoena fit comfortably within the broad relevance standard applicable to Commission investigations. EEOC Opening Br. at 16-23. In any case, even if the scope of the EEOC's subpoena is thought to exceed the literal words of Sandy's charge, the EEOC reasonably expanded its ADA investigation in light of the evidence uncovered during its investigation of her charge, and its implications. EEOC Opening Br. at 24-28. Similarly, the Commission argued that its expansion of the investigation to include race discrimination, which is prohibited under Title VII of the Civil Rights Act of 1964 ("Title VII"), was reasonable in light of the EEOC's discovery of additional evidence suggesting that the very Kronos customer service assessment test which is implicated by Sandy's charge may be a root source of discrimination on the basis of both disability and race. EEOC Opening Br. at 28-35. Thus, the district court abused its discretion by drastically narrowing the EEOC's subpoena. I-JA- Tab 2. The Commission also argued that the district court abused its discretion by entering a confidentiality order which is overly restrictive. Specifically, the confidentiality order contains provisions which are unnecessary in light of existing statutory confidentiality protections, are inconsistent with the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and/or hamstring the agency in meeting its law enforcement responsibilities. EEOC Opening Br. at 11-13, 35-44; I-JA-Tabs 3, 4. In Kronos's brief as appellee ("Kronos Br."), Kronos fails to respond to the Commission's core arguments and instead would have this Court adopt standards which would contravene longstanding principles, based on the agency's statutory investigative authority and adopted by the Supreme Court and the courts of appeals, which give the Commission broad access to information which may shed some light on the allegations made in a charge of discrimination. For example, despite the evidence suggesting that the Kronos tests played a role in Sandy not being hired, and despite it being undisputed that Kroger used the tests to evaluate applicants for numerous positions, nationwide, for a number of years, Kronos contends that because the Sandy charge did not allege a pattern or practice of discrimination or that the tests had an adverse impact, and Kronos is a non-party to the charge, the Commission is precluded from investigating whether the tests have any discriminatory effects beyond Sandy. With respect to the district court's confidentiality order, Kronos argues, similarly without any statutory or judicial authority, that because it is a non-party to the charge and it has a proprietary interest in its testing materials and validity information, it is entitled to enhanced confidentiality protections beyond the extensive protections established by statute and Commission regulation and policy and irrespective of whether the Commission is thereby impeded in its ability to conduct legitimate law enforcement activities. For the reasons stated here and in its opening brief, the EEOC respectfully asks this Court to reject Kronos's arguments and to reverse the district court. ARGUMENT I. The Commission Has the Authority to Conduct an Investigation to Determine Fully the Legality of Kroger's Use of the Kronos Tests and to Broadly Obtain Evidence Relevant to that Determination. As explained in the EEOC's opening brief, "[t]he concept of relevancy is construed broadly when a charge is in the investigatory stage." EEOC v. Franklin & Marshall Coll., 775 F.2d 110, 116 (3d Cir. 1985) (holding peer review materials may be subpoenaed in part to determine if a "pattern of discrimination appears," despite their confidential nature). The EEOC is entitled to "‘access to virtually any material that might cast light on the allegations against the employer.'" Id. (quoting EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984)); EEOC Opening Br. at 17-23. Moreover, the EEOC's investigation is not limited to just what is stated within the charge itself. "The allegations contained in the charge do not narrowly circumscribe the Commission's investigation. . . . [T]he charge is capable of supporting an EEOC investigation into both the discrimination described in the charge itself and into the surrounding circumstances (including a full probing of any evidence of discriminatory practices unearthed during the course of the initial investigation)." EEOC v. Astra USA, Inc., 94 F.3d 738, 746 (1st Cir. 1996) (citations omitted). Accordingly, a reasonable charge investigation may extend to a statutory basis of discrimination not alleged in the charge but reasonably implicated by the facts, see Hicks v. ABT Assoc. Inc., 572 F.2d 960, 966-67 (3d Cir. 1978) (presuming that on appropriate facts an EEOC investigation of a basis of discrimination not alleged in a charge may be reasonable), and this is particularly so when the multiple bases of discrimination share a root source. See EEOC v. Gen. Elec. Co., 532 F.2d 359, 368-70 (4th Cir. 1976) (holding EEOC's lawsuit could include both race and sex claims because the tests "represented a ‘root source of discrimination' that were both racial and sexual" and thus the sex claim reasonably grew out of the investigation of the original charges); EEOC Opening Br. at 24-35. Kronos does not meaningfully address the broad standard of relevance articulated by the Supreme Court and applied by this Court, nor does Kronos meaningfully address the "root source" rationale for permitting the Commission to fully investigate the possible discriminatory effects of Kroger's use of the Kronos assessment tests. Instead, the recurrent theme in Kronos's brief is the wholly unsupported notion that because it is not a respondent to Sandy's charge, the Commission must satisfy a heightened standard of relevance to obtain materials needed to conduct its investigation. Kronos's response brief thus largely bypasses the EEOC's core arguments and presents an alternative, exceedingly narrow interpretation of the Commission's investigative authority—essentially that the Commission must conduct only a word-for-word investigation of Sandy's charge and look into only Sandy's particular circumstances. A. Kronos Mischaracterizes the Record to Argue for an Exceedingly Narrow Interpretation of the Commission's Investigative Authority. Kronos argues that the portion of the EEOC's investigation that extends beyond the literal wording of the Sandy charge is not pursuant to a "valid charge," as though the investigation were not being conducted pursuant to a charge at all. Kronos Br. at 18-23. However, the Sandy charge is clearly valid. See 29 C.F.R. §§ 1601.9, 1601.12. Kronos's "valid charge" argument is in reality the same relevance argument it makes later in its brief. Kronos Br. at 23-35. According to Kronos, the EEOC lacks "jurisdiction" to investigate the impact of the Kronos tests on other Kroger applicants because information and materials regarding that broader impact are not relevant to Sandy's charge. In service of its relevance argument, and in an apparent attempt to make the issues raised by Sandy's charge seem as narrow as possible and to make the EEOC's investigation seem like an overreach, Kronos mischaracterizes the factual record in several important respects in order to conform the facts better to its dubious legal assertions. Kronos attempts to narrow the relevant inquiry by mischaracterizing Sandy's charge allegation as involving only disparate treatment, i.e., intentional discrimination. Kronos Br. at 5, 24, 26 n.13. The district court made the same error. See I-JA-Tab 2 at 5 (referring to the "Sandy discriminatory treatment investigation"). However, a simple review of the Sandy charge makes clear that the Sandy charge contains no legal theory—it concisely describes what happened and says Sandy believed she was discriminated against based on her disabilities and/or her perceived disabilities in violation of the ADA. II-JA-Tab 6 at 23. In any event, charges are not required to state legal theories; rather, they are required to contain facts. See 29 C.F.R. § 1601.12(a)(3). This makes obvious sense, in that "charges are most often drafted by one who is not well versed in the art of legal description," and thus should be "liberally construed." Hicks, 572 F.2d at 965. It is highly unrealistic to expect an applicant such as Sandy to assert in her charge (or even to know) which legal theories of discrimination apply to her facts or to assert (or even to know) how her experience relates to the experiences of other applicants. Apparently not understanding this, Kronos also pointedly states that Sandy's charge is "devoid" of any allegation of systemic adverse impact, national scope, or racial discrimination. Kronos Br. at 20. Determining whether discrimination may have occurred, under what legal theories, and to whom, is the job of the Commission and in order to accomplish this task the Commission must be granted access to the full range of relevant information. This is the very premise of the broad "might cast light" standard of relevance articulated by the Supreme Court. See Shell Oil, 466 U.S. at 68-69 & n.20 (articulating broad "might cast light" standard and citing with approval Blue Bell Boots v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969) (holding EEOC could subpoena broad pattern evidence "concerning job classifications or hiring situations other than those of the complainants" because such evidence was relevant to individual charges and was relevant to assist EEOC in "framing a remedy" which "may, in the public interest," go "beyond the limited interests of the charging parties")); cf. EEOC v. E.I. DuPont de Nemours & Co., 373 F. Supp. 1321, 1335 (D. Del. 1974) (Stapleton, J.) (explaining that "an individual charge operates not so much as a formal accusatory instrument like an indictment but, rather, as the first step in an investigatory process that must be free to define relevant areas of inquiry as it unfolds," and noting that "the charge is generally lay-drawn [by a charging party who] often perceives only dimly the nature and cause of the discrimination he believes he has experienced," and thus the EEOC's power to resolve an individual charge includes the power to correct the underlying conditions responsible for the charge and to seek relief for a class), aff'd on other grounds, 516 F.2d 1297 (3d Cir. 1975). Kronos attempts to sever the nexus between Sandy's non-hire and the Kronos assessment tests by again mischaracterizing the record by stating that Kroger did not rely on Sandy's score on the Kronos customer service assessment in deciding not to hire her (Kronos Br. at 7) and stating that Sandy's charge allegations do not relate to any Kronos assessment. Id. at 8. On the contrary, Kroger, the respondent to the charge underlying this matter, admitted both to Sandy and the EEOC that Sandy's performance on the Kronos customer service assessment test played a role in its decisionmaking. II-JA-Tab 6 at 38-39 ("Bowers also discussed with [Sandy] her low score on the Customer Service Assessment she had completed as part of the application process. . . . Bowers ended the interview by informing [Sandy] that he was concerned about her qualifications, including her low Customer Service Assessment . . . ."). B. Kronos Ignores the Key Fact that the Geographic, Temporal, and Job Parameters of the Commission's Subpoena Are Tailored to Kroger's Use of the Kronos Tests. Pointing to the EEOC's expanded investigation to include all locations and all jobs for which Kronos administers and scores the tests for Kroger, for the entire time it has done so, Kronos attempts to reduce the Commission's position to an absurdity—claiming that the "EEOC argues that it enjoys essentially unlimited power to subpoena any information from any entity, regardless of any connection to the charge allegations" (Kronos Br. at 17) and that the EEOC seeks access to any material the EEOC deems relevant in its discretion. Id. at 33. This represents a fundamental misunderstanding of the EEOC's argument. The EEOC argues that its expansion of this investigation was reasonable and the materials sought are relevant to this properly expanded investigation. As the EEOC explained in its opening brief, the unifying factor is the widespread Kronos assessment testing administered and scored by Kronos for Kroger. The EEOC's investigation naturally corresponds to Kroger's use of the tests—nationwide, for numerous positions, over a number of years. See EEOC Opening Br. at 20-22. Conveniently, Kronos's brief never acknowledges Kroger's widespread use of the Kronos assessment tests. An employer's nationwide use of an employment practice under investigation clearly can support a nationwide subpoena. Recently, in EEOC v. United Parcel Service, Inc., 587 F.3d 136 (2d Cir. 2009), the Second Circuit reversed the denial of the EEOC's subpoena for nationwide information regarding how the employer handled religious exemptions to its appearance guidelines. Although not the only factor in the court's decision to permit Commission access to nationwide data, the paramount consideration was the fact that the company's "Appearance Guidelines apply to every UPS facility in the country." United Parcel Serv., 587 F.3d at 139. Like UPS in its application of its appearance guidelines, Kroger applies the Kronos assessment tests nationwide. Kronos attempts to obscure this clear parallel between the court's analysis in the UPS case and the Commission's argument in this case by pointing to the fact that UPS told the charging parties that they were not hired due to the guidelines and that one of the charges alleged a pattern or practice of religious discrimination. Kronos Br. at 29 n.15. Kronos's efforts notwithstanding, the UPS case provides significant support for the Commission's position here. As in UPS, Sandy also was told that she was not hired due in part to the Kronos customer service assessment test, II- JA-Tab 6 at 38-39, and while Sandy did not allege a pattern or practice of discrimination, the presence of this factor was not dispositive to the Second Circuit's holding in the UPS case and its absence should not be dispositive here. Kronos also attempts to rely on this Court's decertification of a class in Hohider v. United Parcel Service, Inc., 574 F.3d 169 (3d Cir. 2009), a case involving reasonable accommodation claims under the ADA, to challenge the Commission's assertion that the subpoena is relevant to both Sandy's individual circumstances and to whether she is part of a broader class for whom relief may be warranted. Kronos Br. at 34. However, Kronos's reliance on Hohider is misplaced. That case involved private parties seeking to represent a class of ADA plaintiffs in litigation, whereas the question here is whether the Commission's investigation can extend beyond Sandy to include the full scope of persons discriminatorily affected by Kroger's use of the Kronos tests. Whether a private class action can be maintained pursuant to Rule 23 says nothing about the Commission's authority to investigate how an employer's practice affects applicants beyond the charging party. In addition, it is noteworthy that if the Commission were to file a lawsuit in this case, under the Supreme Court's decision in General Telephone Co. v. EEOC, 446 U.S. 318 (1980), unlike the private plaintiffs in Hohider, the Commission may seek relief for a group of aggrieved individuals without satisfying Rule 23 in light of the Commission's role and the public-interest nature of its enforcement actions. See Gen. Tel., 446 U.S. at 333-34 & n.16. And, as the Court stated, "[a]ny violations that the EEOC ascertains in the course of a reasonable investigation [would be] actionable." Id. at 331. C. Kronos Misunderstands the Scope and the Relevance of the Impact and Validity Data Sought by the Commission. Kronos erroneously states that the EEOC still seeks "information concerning all assessments developed and offered by Kronos to all of its customers (not even just those purchased by [Kroger])." Kronos Br. at 9; see also id. at n.5, 32 n.16. However, "[i]n the interest of addressing Kronos's concern with releasing information about the assessments not utilized by Kroger," the EEOC has withdrawn its request for a catalogue of Kronos assessments and a description of each Kronos assessment (item 6 of the EEOC's subpoena). EEOC Opening Br. at 16 n.5; Doc. No. 12 at 5. The respondent in this investigation is Kroger, and the investigation is limited to the assessment tests purchased by Kroger. The Commission no longer seeks information or materials related to assessment tests Kroger has never purchased and has never used. However, the EEOC continues to seek Kronos's production of all user's manuals and instructions for the tests purchased by Kroger, as they are clearly relevant to Kroger's use of the tests and important for the EEOC's understanding of the tests regardless of whether Kroger actually received them. Kronos has produced two documents in the nature of manuals and instructions pursuant to the district court's order dated June 1, 2009, but it is not clear that they represent all the documents that would be responsive to the EEOC's original subpoena item on this point. Furthermore, to the extent Kroger did not obtain all manuals and instructions for the Kronos assessment tests it purchased, the significance of that fact can only be determined by reviewing their actual contents. The Commission also continues to seek impact and validity data of other Kronos clients for the tests Kroger purchased and used. This is not for the purpose of investigating those companies; rather, it is to conduct a thorough investigation of the impact and validity of the Kronos tests that Kroger uses. In its opening brief, the EEOC cited the Uniform Guidelines on Employee Selection Procedures (UGESP) for the common-sense principle that impact and validity data regarding employers with jobs comparable to those for which Kroger uses the tests "might cast light" on the impact and validity of the tests as applied by Kroger. See EEOC Opening Br. at 23 & n.6. The study co-authored by Kronos's Dr. Scarborough itself recognizes the importance – and relevance – of comparing and analyzing multiple employers' use of the Kronos tests. II-JA-Tab 6 at 163 ("[O]ur data come from only one large retailer. Since retail firms in the U.S. operate in a competitive environment, we might anticipate that other firms would respond similarly. An analysis of other cases is clearly warranted."). Kronos nevertheless argues that this broader set of information is irrelevant to the EEOC's investigation, Kronos Br. at 32 n.16, but points to no evidence or analysis which would undermine the significance of such comparative evidence. Kronos's assertion that the UGESP does not apply to the ADA, which the EEOC itself noted, simply misses the point. Despite the UGESP's inapplicability to the ADA, it nevertheless is likely that an employment test developer and vendor such as Kronos has analyzed – and has information relevant to – the question whether its tests have an adverse impact on persons with disabilities given the ADA's prohibitions against testing in a manner that discriminates against persons with disabilities or classes of such persons. See 42 U.S.C. § 12112(6), (7). However, this information is not likely to relate specifically and only to Kroger. I-JA-Tab 2 at 5-6. Importantly, moreover, this case involves not just disability, but also race, as discussed below.<1> D. The Commission's Expansion of its Investigation to Include the Racial Impact of Kroger's Use of the Kronos Tests is Reasonable Pursuant to the "Root Source" Rationale. Kronos attacks both the legal and factual justifications for the Commission's expansion of its investigation to include race. The legal support the Commission relied on in its opening brief is represented by EEOC v. General Electric Co., 532 F.2d 359 (4th Cir. 1976), in which the Fourth Circuit endorsed EEOC's authority to investigate, conciliate and, if need be, litigate beyond the four corners of a particular charge: [T]he original charge is sufficient to support action by the EEOC as well as a civil suit under the Act for any discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge, provided such discrimination was included in the reasonable cause determination of the EEOC and was followed by compliance with the conciliation procedures fixed in the Act. Gen. Elec., 532 F.2d at 366 (emphasis added) (cited with approval in Gen. Tel. v. EEOC, 446 U.S. 318, 331 (1980)). More specifically, the Commission relied on the Court's reasoning that the company's employment tests "represented a ‘root source of discrimination' that were both racial and sexual" and thus the sex claim – even though not charged – reasonably grew out of the investigation of the original charges. Gen. Elec., 532 F.2d at 368. Kronos challenges the Commission's reliance on General Electric. While Kronos correctly points out that the company in that case failed to contest inclusion of sex in the case until litigation and that this was a factor in the decision, Kronos drastically overstates the significance of this fact by stating that "General Electric therefore does not bear on the issue here . . . ." Kronos Br. at 30. To the contrary, it is obvious from any fair reading of General Electric that the most important factor in the eyes of the Court was its recognition of the Commission's authority to ferret out discrimination fully through a reasonable investigation which, implicit in the Court's holding, includes the authority to investigate bases of discrimination not alleged if doing so is reasonable. See Gen. Elec., 532 F.2d at 364-65 (a "charge is not to be treated as a common-law pleading that strictly cabins the investigation," but rather it is a "jurisdictional springboard" for an investigation of the allegations in the charge and any other discrimination uncovered while investigating the allegations in the original charge) (internal quotation marks and citations omitted). Kronos's reliance on the Southern Farm and Bailey cases is misplaced for the reasons stated in the Commission's opening brief: EEOC v. Southern Farm Bureau Cas. Ins. Co., 271 F.3d 209 (5th Cir. 2001), was wrongly decided and is nevertheless distinguishable because, unlike here, that case did not involve a "root source" of discrimination; and while in EEOC v. Bailey Co., 563 F.2d 439 (6th Cir. 1977), the circuit court narrowly interpreted the EEOC's authority to investigate and sue on bases not in a charge, the court nevertheless endorsed the view that EEOC has broader authority when multiple bases have a "common source of discrimination," such as here. See EEOC Opening Br. at 30-33. Kronos also argues against the EEOC's expansion of its investigation to include race on factual grounds. In the Commission's opening brief, the EEOC explained that it expanded its ADA investigation to include race because, in the course of investigating the Kronos assessment tests that Kroger said it applied to Sandy, the EEOC found in the public domain the Scarborough article which states that "minority applicants performed significantly worse than majority applicants on the employment test;" "there [were] marked differences in the distribution of standardized . . . test scores among White, Black and Hispanic applicants;" and the "race gaps in test scores . . . [were] highly significant." II-JA-Tab 6 at 135, 140; EEOC Opening Br. at 7-8. The Commission also determined that race charges were pending against Kroger.<2> In response, Kronos contends the EEOC's investigation of race discrimination against African Americans has nothing to do with Sandy's charge because Sandy is white. Kronos Br. at 25, 31. Kronos argues that the race-related impact and validity of its tests are "completely irrelevant to the charge" and that the "EEOC identifies no need for the subpoenaed information in connection with Sandy's charge." Id. at 20. Of course, the nexus between Sandy and others encompassed by the Commission's expanded investigation is the Kronos assessment tests they all took. Sandy's experience suggests that the tests may have a disparate impact on persons with disabilities and the Scarborough article suggests the tests may have a disparate impact based on race. In other words, it is a distinct possibility that the tests are a root source of discrimination on the basis of race and disability. See EEOC Opening Br. at 28-35. The broader inquiry into race discrimination thus springs directly from, and is relevant to, the allegations in Sandy's charge. Kronos argues at length that the Commission has misread the Scarborough article. According to Kronos, properly read, the article concludes that the test has no racial adverse impact. Kronos Br. at 22. With this line of argument, Kronos seeks to mire this Court in a debate over the merits – i.e., whether the evidence establishes that the test is, in fact, discriminatory – notwithstanding the fact that the investigation is ongoing and Kronos has refused to produce the evidence needed to fully assess that question. However, subpoena enforcement proceedings "are designed to be summary in nature," with courts having a "sharply limited" role. EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1985). The type of merits argument being made by Kronos has no place in a subpoena enforcement dispute. See Shell Oil, 466 U.S. at 72 & n.26 (stating EEOC may insist on relevant evidence "regardless of the strength of the evidentiary foundation for those allegations" and a court assessing whether EEOC can prove claims "would be reversible error"); United Parcel Serv., 587 F.3d at 140 (citing Shell Oil, and stating "at the investigatory stage, the EEOC is not required to show that there is probable cause to believe that discrimination occurred or to produce evidence to establish a prima facie case of discrimination").<3> The only possible exception might be if Kronos "can show that there is no factual or legal support for the agency's preliminary determination to investigate." EEOC v. Roadway Express, Inc., 750 F.2d 40, 42 (6th Cir. 1984). Kronos comes nowhere close to meeting this standard. Indeed, its argument in this regard is simply that the Scarborough report shows that the employer's use of the Kronos tests was no more discriminatory than the unstructured process that preceded it. See II-JA-Tab 6 at 134-35 & n. 4 (explaining that the model used in the article only measured the "relative biases" demonstrated in the employer's hiring before and after Kronos testing began) (emphasis in original). Kronos says Scarborough's declaration attempting to explain away the significance of the article is "uncontested," Kronos Br. at 15, but that again is a mischaracterization of the record because the EEOC's Chief Psychologist has provided his own declaration directly refuting Scarborough and explaining why the article indicates that Kronos's testing had a disparate impact. See II-JA-Tab 7 at 192-96 (Dr. Tonowski Declaration). Legally, of course, applicants have a personal right not to be subjected to an unlawful test regardless of how other applicants were treated prior to the test's implementation. Cf. Connecticut v. Teal, 457 U.S. 440, 455 (1982). II. The Confidentiality Order is Overbroad and Contrary to FOIA, and Places Untenable Restrictions on the Commission's Legitimate Law Enforcement Activities. Similar to the heightened relevance standard to which Kronos believes it is entitled because it is a non-party, Kronos states that its non-party status renders its interest in confidentiality particularly acute and thus it deserves special confidentiality protection. Kronos Br. at 35-37. Again, however, no heightened standard exists, nor is one needed. Title VII and the ADA prohibit the EEOC from disclosing information obtained in a charge investigation – from whatever source – prior to a lawsuit and prohibit disclosing such information even to the parties to the charge once the time limitation for filing a lawsuit has expired. See EEOC Opening Br. at 35-36. Importantly, moreover, while the EEOC generally has authority during an investigation to make disclosures to the charging party to facilitate its investigation and law enforcement efforts, EEOC v. Associated Dry Goods, 449 U.S. 590, 598-99 (1981), in this case the EEOC has agreed to forego even that authority. EEOC Opening Br. at 41 n.11. Just as critically, pursuant to the Trade Secrets Act, 18 U.S.C. § 1905, and Commission policy, the EEOC keeps all confidential commercial or trade secret information protected at all times. See EEOC Opening Br. at 37-38. Kronos does not dispute that the Title VII/ADA confidentiality provisions and the Trade Secrets Act prohibit the EEOC from disclosing legitimate confidential commercial or trade secret information turned over to the EEOC pursuant to the subpoena, and it does not explain how, if at all, an outside party would be able to obtain its trade secret or other confidential commercial information under the existing legal safeguards and the extra protection granted by the Commission. Rather, the upshot of Kronos's argument seems to be that the Commission and its employees cannot be trusted to follow the law and keep materials confidential. See Kronos Br. at 40-41. Kronos's "self-conjured groundless suspicion that there is a danger that a governmental employee will commit a wrongful act is brazen and insulting." NLRB v. Friedman, 352 F.2d 545, 547 (3d Cir. 1965) (affirming enforcement of NLRB subpoena) (citation and quotation marks omitted). Kronos asserts that the criminal penalties that exist for an EEOC employee's violation of the Title VII/ADA confidentiality provisions are somehow insufficient to protect Kronos's interests, but provides no factual support. Kronos Br. at 38 n.18. Kronos points to no instance in which a Commission employee has been charged with violating confidentiality rights. Id. at 37. This is a testament to the efficacy of the existing statutory framework for protecting confidentiality and to the seriousness with which the EEOC and its employees take the obligation to keep investigative materials confidential. It is not a cause to impose overbroad and overly restrictive confidentiality requirements on the EEOC. Significantly, in this case the Commission has supplemented the existing strong legal framework for protecting confidentiality. Courts have held protective orders unnecessary even in cases in which the EEOC did not provide added safeguards. See EEOC v. Morgan Stanley & Co., Inc., 132 F. Supp. 2d 146, 158 (S.D.N.Y. 2000) (holding there was no justification for a protective order in light of existing safeguards, even though EEOC could disclose investigative materials to the charging party and her agents); EEOC v. City of Milwaukee, 54 F. Supp. 2d 885, 895 (E.D. Wis. 1999) (stating city failed to convince the court that it could or should impose a confidentiality agreement upon the EEOC, in light of existing safeguards); EEOC v. County of Hennepin, 623 F. Supp. 29, 33 (D. Minn. 1985) (holding defendant made no showing that existing statutory confidentiality safeguards were inadequate and thus denied protective order); cf. EEOC v. C&P Tel. Co., 813 F. Supp. 874, 876-77 (D.D.C. 1993) (ordering EEOC to enter into a confidentiality agreement prohibiting disclosure of tests and validation evidence largely because EEOC would not otherwise assure that information would not be disclosed to charging parties and third parties). Kronos misunderstands the Commission's argument by stating that the EEOC's position is that "the district court's order is unnecessary because it does nothing other than provide the same protections already given to Kronos under Title VII, the Trade Secrets Act and the Privacy Act." Kronos Br. at 36. This is not the Commission's argument, and that is not what the district court did here. As the Commission argued in its opening brief at 39-41, the district court's confidentiality order goes far beyond reiterating existing safeguards because the district court's order creates tension with the FOIA and places unreasonable and unnecessary limitations on the Commission's internal use of information. With respect to the FOIA, the order contains an overbroad definition of confidential material – i.e., it covers not just the testing, job analysis, and validity materials Kronos is particularly concerned about, but all material produced by Kronos without regard to its nature – and contains a provision improperly calling for deference to Kronos in a FOIA dispute – i.e., it states EEOC "will not" disclose information if Kronos objects without requiring Kronos to seek an injunction against disclosure if there is disagreement between EEOC and Kronos, as contemplated by 29 C.F.R. § 1610.19(e). I-JA-Tab 4 at 8¶ A, 9-10¶ D. This requirement that the EEOC defer to Kronos in a FOIA dispute is far beyond "simply requir[ing] EEOC to do that which [it] normally does anyway." Kronos Br. at 37. These two provisions, particularly when viewed together, put the district court's confidentiality order in considerable tension with the FOIA. The Commission acknowledges that it contributed to the district court's error in this respect, EEOC Opening Br. at 38 n.10, however, this Court has the ability to reach issues a party waived below when warranted by exceptional circumstances, such as when the public interest requires it or when a manifest injustice would result. E.g., Brown v. Phillip Morris, 250 F.3d 789, 799 (3d Cir. 2001). Exceptional circumstances exist here. "When a court orders confidentiality in a suit involving a governmental entity . . . there arises a troublesome conflict between the governmental entity's interest as a litigant and its public disclosure obligations." Pansy v. Borough of Stroudsburg, 23 F.3d 772, 791 (3d Cir. 1994). Thus, in situations such as in the instant case, when "it is likely that information is accessible under a relevant freedom of information law, a strong presumption exists against granting or maintaining an order of confidentiality whose scope would prevent disclosure of that information pursuant to the relevant freedom of information law." Id. Courts should narrowly draw confidentiality orders pertaining to government entities such as the EEOC and have "discretion to fashion such orders according to the needs and circumstances of each case." Id. The instant confidentiality order is not so fashioned. We respectfully request this Court to address this issue on appeal and to relieve the Commission from provisions in the confidentiality order at odds with the EEOC's important FOIA obligations and at odds with the FOIA rights of Sandy and Kroger. See id. ("[A] court could grant an order of confidentiality while specifying that the scope of the confidentiality order does not extend so as to prevent disclosure pursuant to any freedom of information law."). The other aspect of the district court's order that goes beyond "existing safeguards" are the several provisions designed to restrict the EEOC to using information only in conjunction with the Sandy charge investigation and designed to purge the EEOC's files of any such material after the investigation is completed. I-JA-Tab 4 at 8 ¶ B. The Commission's opening brief explained that these provisions run afoul of the principle articulated in EEOC v. Associated Dry Goods, 449 U.S. 590 (1981), viz., that as long as confidentiality precautions are taken, the EEOC may use investigative material in conjunction with multiple charge investigations. EEOC Opening Br. at 42-43. The EEOC also argued that the "limitations on use" section of the confidentiality order hamstrings the EEOC's legitimate law enforcement interests – both investigative and as a potential litigator – and is inconsistent with government records retention requirements. EEOC Opening Br. at 43-44. Kronos attempts to distinguish Associated Dry Goods and asserts a vague, unelaborated right of "due process" to object separately each time the EEOC seeks to use information obtained from Kronos in other charge investigations. Kronos Br. at 40-42.<4> But Kronos does not appear to dispute the Commission's interest on behalf of the public in using the materials in multiple investigations. Rather, as Kronos acknowledges, the onerous "limitations on use" provisions it proposed are based on what Kronos believes is a more important interest—the financial interest Kronos has in its clients believing that information related to Kronos's testing products are not in the EEOC's possession and will not be "used against them." Kronos Br. at 43. It is simply unreasonable for Kronos or any of its clients to expect that Kronos's products are immune from government scrutiny. CONCLUSION For the foregoing reasons and the reasons stated in the Commission's opening brief, the Commission respectfully requests that the district court's orders be vacated, and that items 1-5 of the EEOC's subpoena be enforced. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ________________________ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 corbett.anderson@eeoc.gov CERTIFICATE OF BAR MEMBERSHIP Under Third Circuit L.A.R. 28.3(d), I certify that, as an attorney representing an agency of the United States, I am not required to be admitted to the bar of this Court. I also certify that all other attorneys whose names appear on this brief likewise represent an agency of the United States and are also not required to be admitted to the bar of this Court. See 3d Cir. L.A.R. 28.3, comm. comt. January 14, 2010 ________________________ Corbett L. Anderson Counsel for Appellant EEOC CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)(ii) for reply briefs because it contains 6,607 words, excluding the parts of the brief excepted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in 14-point Times New Roman font. January 14, 2010 ________________________ Corbett L. Anderson Counsel for Appellant EEOC CERTIFICATE OF IDENTICALLY FILED BRIEFS Pursuant to L.A.R. 31.1(c), I certify that the text of the electronically filed version of this brief is identical to the text of the hard copies of the brief filed with the Court. January 14, 2010 ________________________ Corbett L. Anderson Counsel for Appellant EEOC CERTIFICATE OF VIRUS CHECK Pursuant to L.A.R. 31.1(c), I certify that a virus check using Symantec AntiVirus, program 10.1.6.6000, was performed on the electronic version of this brief on January 14, 2010, prior to electronic filing with the Court. January 14, 2010 ________________________ Corbett L. Anderson Counsel for Appellant EEOC CERTIFICATE OF SERVICE I, Corbett L. Anderson, certify that on January 14, 2010, the same day that I transmitted to the court an electronic version of the brief for Appellant EEOC, I caused ten (10) printed and bound copies of the brief to be sent to the Clerk of the United States Court of Appeals for the Third Circuit, by FedEx. I also certify that the following counsel, who have agreed to accept electronic service, will be served by the appellate CM/ECF system and that one paper copy of the brief bound with Volume I of the Joint Appendix will be served by first-class mail, postage prepaid, to: Counsel for Respondent-Appellee R. Lawrence Ashe, Jr. Ashe, Rafuse & Hill LLP 1355 Peachtree Street, N.E., Suite 500 Atlanta, Georgia 30309-3232 (404) 253-6001 lawrenceashe@asherafuse.com Terrence H. Murphy Buchanan Ingersoll & Rooney PC 301 One Oxford Centre, 20th Fl. Pittsburgh, PA 15219-1410 (412) 392-2044 terrence.murphy@bipc.com Counsel for Amici Curiae Rae T. Vann Norris, Tysse, Lampley & Lakis LLP 1501 M Street, N.W., Suite 400 Washington, DC 20005 (202) 629-5600 rvann@ntll.com January 14, 2010 ________________________ Corbett L. Anderson Counsel for Appellant EEOC *********************************************************************** <> <1> UGESP clearly requires information on impact to be collected with respect to race and such data therefore should be in Kronos’s possession. See 29 C.F.R. § 1607.4. <2> In an apparent attempt to deflect attention away from the Scarborough article, Kronos devotes considerable attention to the fact that the Commission declined to produce these charges. Kronos Br. at 20-21. As Kronos knows, the Commission declined to produce the charges to Kronos due to concerns about violating the Privacy Act of 1974, 5 U.S.C. § 552a(b). II-JA-Tab 6 at 117. The Privacy Act protects the privacy of charging parties, not respondents, and thus the fact that Kronos has now obtained Kroger’s consent (Kronos Br. at 10 n.6) is of no moment. It should suffice to say that these charges were one of the reasons – but neither the only nor the primary reason – the Commission expanded its investigation to include race, as stated by the Commissioners in their determination on Kronos’s petition to revoke the subpoena. See II-JA-Tab 6 at 104, 108. Kronos’s argument that this Court should draw an “adverse inference” that such charges never existed is not only frivolous – e.g., the Commission clearly is under no obligation to produce the charges to Kronos – but it directly impugns the credibility of the Commissioners and should be rejected. Moreover, regardless of those charges, the Scarborough report clearly raises the specter that Kroger’s use of the Kronos assessment tests has a race-related impact. <3> Similarly, Kronos’s criticism that it has “produced all information required by the district court’s June 1, 2009 order” and “EEOC has not stated any negative impact” of the assessments (Kronos Br. at 26) is also in the nature of a merits argument and should be ignored. Again, the Commission is still investigating the charge of discrimination and has made no “findings.” In any event, since – as Kronos itself points out – it is not the respondent to a charge, the Commission is under no duty to inform Kronos, a non-party, of the results of its investigation of Kroger. Indeed, to do so would be inappropriate. <4> Kronos erroneously states the instant confidentiality order is consistent with “EEOC’s practice” because it is “substantively identical” to a confidentiality order that Kronos’s attorney negotiated with the EEOC in another case, EEOC v. Developmental Dimensions Int’l, Inc., 07-C-6266, N.D. Ill., 12/11/07 (DDI Order). Kronos Br. at 42 & n.22; II-JA-Tab 10 at 289-94. Obviously, one consent order does not represent an “EEOC practice” and of course that order has no effect here. In addition, however, Kronos is simply mischaracterizing the circumstances of that case when it asserts that it is identical to the instant matter. The DDI order pertained to a narrower investigation and a narrower range of documents than here (see II-JA-Tab 10 at 289 ¶ 1, 290 ¶ 3), and did not call for the EEOC to defer to the subpoena respondent in a FOIA dispute. Id. at 291-92 ¶¶ 8-9. Moreover, the DDI order contained no “need to know” restriction and contained no language preventing the EEOC from using subpoenaed information in another investigation. The DDI order did require the Commission to return and destroy subpoenaed documents and notes made thereupon but, unlike here, the provision did not apply if the EEOC decided to file a lawsuit on the charge. Id. at 290-91 ¶ 5.