Equal Employment Opportunity Commsission v. Southern Farm Bureau Casualty Insurance Co. 00-31482 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-31482 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Defendant-Appellee. Appeal From the United States District Court for the Eastern District of Louisiana (New Orleans) REPLY BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 TABLE OF CONTENTS TABLE OF AUTHORITIES ii ARGUMENT 1 CONCLUSION 26 CERTIFICATE OF SERVICE REVISED CERTIFICATE OF COMPLIANCETABLE OF AUTHORITIES CASES Davis v. Yazoo County Welfare Dep't, 942 F.2d 884 (5th Cir. 1991) 23 Dennis v. County of Fairfax, 55 F.3d 151 (4th Cir. 1995) 8 EEOC v. Bailey Co., Inc., 563 F.2d 439 (6th Cir. 1977) 18, 19 EEOC v. Central Steel & Wire Co., 1981 WL 342 (N.D. Ill. 1981) 18, 19 EEOC v. First Nat'l Bank of Jackson, 614 F.2d 1004 (5th Cir. 1980), cert. denied, 450 U.S. 917 (1981) 25 EEOC v. Ford Motor Credit Co., 26 F.3d 44 (6th Cir. 1994) 17 EEOC v. General Elec. Co., 532 F.2d 359 (4th Cir. 1976) 8 EEOC v. Hearst Corp., 553 F.2d 579 (9th Cir. 1977) 20 EEOC v. Huttig Sash & Door Co., 511 F.2d 453 (5th Cir. 1975) 12 EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980), cert. denied, 453 U.S. 912 (1981) 18, 23 EEOC v. Quick Shop Markets, Inc., 396 F. Supp. 133 (E.D. Mo. 1975) aff'd per curiam, 526 F.2d 802 (8th Cir. 1975) 17, 18, 23 EEOC v. Shell Oil Co., 466 U.S. 54 (1984) 2, 4, 6, 7, 8, 10, 11, 20, 21, 25 General Ins. Co. of Am. v. EEOC, 491 F.2d 133 (9th Cir. 1974) 19 General Telephone Co. v. EEOC, 446 U.S. 318 (1980) 10, 25 Jeffries v. Harris County Community Action Ass'n, 615 F.2d 1025 (5th Cir. 1980) 15, 23, 24 Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350 (5th Cir. 1995) 20 Payne v. Travenol Lab., Inc., 673 F.2d 798 (5th Cir. 1982) 23 Pruet Production Co. v. Ayles, 784 F.2d 1275 (5th Cir. 1986) 10 Robinson v. Adams, 847 F.2d 1315 (9th Cir. 1987) 14, 15 Stewart v. Hannon, 675 F.2d 846 (7th Cir. 1982) 18 Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389 (5th Cir. 2000) 21 University of Pa. v. EEOC, 493 U.S. 182 (1990) 12 Waters v. Heublin, Inc., 547 F.2d 466 (9th Cir. 1976) 18 STATUTORY PROVISIONS, RULES, AND SECONDARY AUTHORITY 29 U.S.C. § 161 5 42 U.S.C. § 2000e-5(b) 6 42 U.S.C. § 2000e-8 4, 10 42 U.S.C. § 2000e-9 5 Fed. R. Evid. 401 21 EEOC Compl. Man. (BNA) § 602.4(b) 11 Note, Invisible Man: Black and Male Under Title VII, 104 Harv. L. Rev. 749 (1991) 23 ARGUMENT In its opening brief, the EEOC contended that the district erred in denying enforcement of the Commission's subpoena because the requested information regarding the gender and office location of certain employees of Southern Farm Bureau Casualty Insurance Company ("Southern Farm" or "SF") falls within its investigative authority and is relevant to the race discrimination charge under investigation. Specifically, the Commission argued that Title VII empowered it to conduct an investigation of a filed charge, request relevant data, and to pursue any other statutory violations uncovered during the course of that investigation particularly if, as in this case, the newly discovered violation stemmed from the same root source as the violations alleged in the charge. EEOC Br. at 14-26. Consequently, the Commission argued, it was entitled to the gender information because, during its investigation of a race discrimination charge, Southern Farm provided requested data that showed that the company may have been discriminating against women as well as African Americans when it used word-of-mouth as its hiring method to fill certain positions. Id. at 31-32. Hence, the Commission argued that, if Southern Farm is discriminating against women, which the requested data would prove or disprove, that discrimination would "cast light" on the allegations in the filed charge and assist the EEOC in determining whether Southern Farm discriminates in hiring and does so as to the particular jobs for which the charging party applied. Id. at 32. In addition, if the gender information, which would produce employment information about men and women, showed Southern Farm had a hiring preference for white males, that data also would support the charging party's allegation that he was discriminated against because he is African American, and thus because of his race. Id. In response, Southern Farm asserts that the district court properly denied the EEOC's subpoena because the requested gender data is not relevant to the investigation of Mr. Thomas's race discrimination charge since Mr. Thomas did not allege gender discrimination in his charge. SF Br. at 16-17. In its view, the scope of an EEOC investigation is restricted to the contents of the charge. As support for this position, Southern Farm argues that the Supreme Court's decision in EEOC v. Shell Oil Co., 466 U.S. 54 (1984), which addressed the necessity of valid charges to trigger an EEOC investigation, requires this conclusion. Id. at 15-16, 22-24. In addition, Southern Farm argues that settled case law establishing the Commission's authority and obligation to investigate potential violations that are uncovered during the course of an investigation of a valid discrimination charge is inapplicable to this case. Id. at 26-37. It argues, instead, that cases addressing the relevance of evidence to prove facts in dispute at trial dictate the contours of relevance in an administrative investigation, and that the district court's decision is consistent with them. SF Br. at 24-25. Based on these reasons, Southern Farm asserts that "the district court correctly determined that the EEOC did not meet its burden of proving that gender information pertaining to Southern Farm's employees was relevant to the race discrimination charge it is currently investigating." Id. at 37. Thus, it submits that the denial of the Commission's subpoena was not clearly erroneous and therefore should be affirmed. Id. at 37-38.<1> For the reasons discussed below (and in its main brief), the Commission urges this Court to reverse the district court's erroneous decision and require Southern Farm to comply with the Commission's subpoena. 1. The EEOC's Broad Investigative Authority Does not Conflict with Shell Oil's Rule Requiring a Valid Charge as a Precondition to an EEOC Investigation Southern Farm acknowledges that "[c]entral to the issue in the instant matter is the extent of the EEOC's power to request and subpoena information from a respondent company during its investigation." SF Br. at 14. Despite this acknowledgment, Southern Farm insists that the EEOC's investigation of potential gender bias is constrained by the language of 42 U.S.C. § 2000e-8, which permits the EEOC to have access to "'any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by this subchapter and is relevant to the charge under investigation.'" Id. With this in mind, Southern Farm asserts that the Commission's gender discrimination investigation is not relevant to the filed race discrimination charge because the charge contains no allegation of gender bias, and thus the Commission's investigation conflicts with Shell Oil's pronouncement that "'[t]he EEOC's investigative authority is tied to charges filed with the Commission.'" Id. at 15. In addition, Southern Farm contends that since the EEOC's investigative authority is not plenary, its ability to investigate violations of the statute is significantly limited. Id. at 16. Southern Farm's position is untenable. Southern Farm essentially misses the mark regarding the breadth of the EEOC's investigatory authority as it bears on the Commission's obligation to eradicate workplace discrimination after a valid charge has been filed. As the Commission stated in its opening brief, apart from investigating the specific allegations raised in the filed charge, the EEOC, acting in the public interest, is authorized to investigate violations of the statute that come to its attention in the course of investigating a filed charge. EEOC Br. at 15-18. Here, evidence suggesting potential gender bias against women came to the Commission's attention during its investigation of Mr. Thomas's charge. Documents proffered by Southern Farm that were material to Mr. Thomas's race allegations indicated that females were underrepresented in Southern Farm's workforce in the same jobs Mr. Thomas sought and during the same time frame that Mr. Thomas contends the company engaged in unlawful discrimination against him. Given that this underrepresentation of women appeared to be caused by the same employment method -- word of mouth recruitment-- that is challenged by Mr. Thomas, the Commission's duty to enforce Title VII obligates it to determine whether there is any merit to this potential claim and, if so, to take corrective action. EEOC Br. at 15-16. Therefore, the Commission's subpoena, which was tailored to produce the gender and office location of employees within two job categories, is not only reasonable, but sufficiently related to the charge under investigation to be well within the EEOC's investigative authority. See 29 U.S.C. § 161 (the agency is entitled to request the production of any material that "relate[s] to any matter under investigation or in question")(as incorporated in 42 U.S.C. § 2000e-9). Additionally, contrary to Southern Farm's contentions, Shell Oil is not dispositive of the issue before the court. The issue before this Court is whether the EEOC can request data regarding a violation of Title VII that is uncovered during an investigation of a filed charge, even if the new violation was not asserted by the charging party. In Shell Oil, the central issue before the Supreme Court was "how much information must be included in the charge and provided to the employer before the Commission may secure judicial enforcement of an administrative subpoena compelling the employer to disclose personnel records and other material relevant to the charge." Shell Oil, 466 U.S. at 56 & 57 n.1. The employer therein opposed enforcement of an EEOC subpoena on the ground that the charge did not contain information sufficient to satisfy § 706(b) of Title VII, 42 U.S.C. § 2000e-5(b). Id. at 57-60. The Court held that a charge meeting the requirements of § 706(b) was a "jurisdictional prerequisite to judicial enforcement of a subpoena issued by the EEOC," but found that the requirements of § 706(b) had been met.<2> Id. at 65. In reaching its conclusion, the Court cited legislative history indicating that "'the Commission's investigatory power is significantly narrower than that of the Federal Trade Commission or of the Wage and Hour Administrator, who are authorized to conduct investigations, inspect records, and issue subpenas [sic], whether or not there has been any complaint of wrongdoing.'" Id. at 64-65 (citations omitted). Relying on this language, Southern Farm correctly concludes that the EEOC's investigatory and subpoena power is not "plenary." SF Br. at 16. However, even if the Commission's investigatory authority is not plenary, nothing in Shell Oil compels the conclusion that the EEOC cannot investigate a potential violation that comes to light during its investigation after a valid charge has been filed merely because the charge did not allege the new violation. To the contrary, in holding that the "linkage between the Commission's investigatory power and charges of discrimination" rests on the filing and notice of a valid charge, Shell Oil, 466 U.S. at 65, the Court strongly intimated that no other limitation on the Commission's investigative authority existed. Id. at 65-66. Moreover, Shell Oil does not attempt to define what information is "relevant" when the EEOC exercises its subpoena powers. Therefore, since Southern Farm's criticism of the EEOC's investigation is not based on the validity of Mr. Thomas's charge or the notice provided by the EEOC,<3> neither the Supreme Court's holding in Shell Oil nor the legislative history of Title VII cited therein can bear the interpretation that Southern Farm imputes to them of restricting the Commission's investigation to the terms of the charge or creating a barrier for inquiries concerning potential discrimination uncovered during the course of a legitimate investigation.<4> 2. The EEOC's Investigation of Gender Discrimination Against Women and Demand for Gender Data is Relevant to the Race Discrimination Charge under Investigation Despite controlling authority establishing that the gender data is within the purview of the Commission's subpoena authority since evidence of gender bias surfaced during the Commission's investigation of the filed charge and has the same root source as the alleged race discrimination claim, see EEOC Br. at 15-28, Southern Farm insists that the gender information is not relevant to Mr. Thomas's race discrimination charge because the charge does not allege gender discrimination against females. SF Br. at 16-17. In addition, Southern Farm argues that the Commission's "root source" argument is "specious" because it does not meet the relevancy requirements for enforcing a subpoena or the Commission's own definition of "relevance" as set forth in its Compliance Manual. SF Br. at 18-20. And, in a last ditch effort, Southern Farm cites a series of cases that it contends supports the district court's denial of the enforcement. SF Br. at 21. These arguments are without merit. a. The fact that Mr. Thomas did not allege that Southern Farm discriminated against female applicants in its hiring decisions does not place any constraints on the Commission's authority to investigate this potential violation. As the Commission stated in its main brief, the function of a Title VII charge is to place the EEOC on notice that someone believes that an employer has violated the law. EEOC Br. at 14. Hence, the purpose of the charge is only "'to initiate the EEOC investigation,'" Pruet Production Co. v. Ayles, 784 F.2d 1275, 1279 (5th Cir. 1986) (internal citation omitted in original), not to control its boundaries. Therefore, when the Commission invokes its investigatory authority under 42 U.S.C. § 2000e-8, which states that the EEOC can demand information "relevant" to the charge under investigation, the Supreme Court has made clear that, in the context of EEOC investigations, the agency should be given access to "virtually any material that might cast light on the allegations against the employer." Shell Oil, 466 U.S. at 68-69. Moreover, the fact that the Supreme Court has authorized the EEOC to seek to remedy violations that are uncovered during the course of an investigation of a valid charge affirms the breadth of its investigatory authority. See, e.g., General Telephone Co. v. EEOC, 446 U.S. 318, 331 (1980) ("[a]ny violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable"). With this latitude, the absence of an allegation of gender discrimination would not preclude the EEOC from requesting gender data from the company after it produced information during the agency's investigation of the race charge that suggests sex discrimination against female applicants. Although evidence of sex discrimination would not necessarily serve to prove race discrimination, it surely could be said to "cast light" on the original allegations. b. In addition, information concerning new violations arising from the same root source as the original violation alleged in the charge do meet the relevancy standards for subpoena enforcement and the Commission's definition of relevancy. As stated earlier, subpoenaed data is relevant if it will "cast light on the allegations against the employer." Shell Oil, 466 U.S. at 68-69. Despite the Court's approval of seeking any evidence that casts light, the EEOC has stated in guidance to its investigators that "[e]vidence is relevant if it tends to prove or disprove an issue raised by a charge/complaint, that is a material issue . . . ." EEOC Compl. Man. (BNA) § 602.4(b). Under either formulation of the definition of "relevance," the Commission maintains that it can investigate violations that have the same "root source" as the violation alleged in the charge because proof of discrimination against other protected groups will help to prove or, at the very least, cast light on the charged discrimination against African Americans. EEOC Br. at 16-19. In rebuttal, Southern Farm argues that "[i]f this Court were to accept the EEOC's rationale" that it can investigate possible gender bias that arises out of the same root source as the bias alleged in the filed charge, "the EEOC would not only be entitled to gender information regarding Southern Farm's employees, but also their national origin and religious information because of the 'focus on the same employment practice.'" Id. at 18. Southern Farms also adds that, "[u]tilizing this argument, once a charge of any kind was filed, the EEOC would be entitled to information about the sex, race, national origin, color and religion of every employee of the respondent employer so long as they held the same job title." Id. This Court should not be misled by Southern Farm's hyperbole.<5> In this case, Mr. Thomas has alleged that Southern Farm has discriminated against him and other African Americans on the basis of race by failing to hire them for insurance-related positions. Evidence that Southern Farm uses "word-of-mouth" as its recruitment method to hire for its insurance-related jobs and that this method has a discriminatory impact on women as well as African Americans would "tend to prove or disprove" or cast light on the allegation that Southern Farm practices employment discrimination. In addition, documentation revealing Southern Farm's treatment of women would provide comparative data about similarly situated applicants or employees necessary to determine whether there is a basis for Mr. Thomas's discrimination claim. The gender information would also "tend to prove or disprove" or cast light on the "material issue" of whether Southern Farm has a hiring preference for white males, and assist the Commission in determining whether that bias creates a discriminatory impact on African American applicants such as Mr. Thomas. Finally, evidence of gender bias against hiring women in the same jobs and during the same time period Mr. Thomas applied for those jobs would "cast light" on whether Southern Farm's reasons for not hiring Mr. Thomas or other African Americans are pretextual. Therefore, the "root source" and other commonalities between the race discrimination alleged in Mr. Thomas's charge and the potential discrimination based on gender is significant in the Commission's search for the truth and, given the public interest in ferreting out discrimination in the workplace, entirely justifies the expanded investigation of Mr. Thomas's charge and attendant request for gender data. Similarly, Southern Farm's assertion that, although "how many white employees were hired as opposed to how many African American employees were hired," id. at 19, is "possibly" relevant to Thomas's race discrimination charge, "[w]hether the employees hired were male or female is of no moment to Mr. Thomas' race discrimination charge" id., is patently frivolous. In fact, contrary to Southern Farm's contention, data showing that "Southern Farm hired a majority of females for those positions," SF Br. at 19, would be relevant to the filed charge, particularly if those hired females included both Caucasians and African Americans. Recognizing that Southern Farm has already produced information suggesting Southern Farm prefers to hire white males, gender data showing that Southern Farm also hired white females and/or did not hire black females is relevant to the filed charge because such data would strengthen Mr. Thomas's allegation that Southern Farm discriminates against African Americans on the basis of race. Further, if the data disclosed that Southern Farm hired African American females, but no black males, such information would be material to the filed charge because it would provide reasonable cause to believe that Southern Farm did not hire Mr. Thomas because he is a black male, a result that is as racially discriminatory as it is gendered, and hence supports his allegation of unlawful bias against African Americans, albeit a sub-group. Robinson v. Adams, 847 F.2d 1315, 1318 (9th Cir. 1987) ("[c]onceivably, the absence of any Black male employees could result from racial stereotyping or have some other link to racial discrimination"); id. at 1321 (Pregerson, J., dissenting) (non-employment of a single black male "is strong evidence that defendants have discriminated against black males by creating an artificial barrier to their professional development, thereby frustrating Title VII's goals of achieving equality of opportunity").<6> Finally, if the requested data reveals that women in general are equally underrepresented in hiring for these positions, it would confirm the Commission's belief that Southern Farm's hiring practices favor white males and therefore discriminate on the basis of race as well as gender, EEOC Br. at 19, substantiating Mr. Thomas's allegations that he was discriminated against because he is African American. Accordingly, the data requested by the EEOC as to the gender of the claims adjusters and claims representatives, positions in which Mr. Thomas was interested, is pertinent to his charge of discrimination. Lastly, as noted in its opening brief, the EEOC is aware that "unfettered fishing expeditions" are impermissible, EEOC Br. at 16, but this investigation cannot reasonably be considered unjustifiably broad. Here, the data Southern Farm voluntarily produced in response to the Commission's request for information relevant to the race discrimination charge provided a strong basis for the EEOC to expand its investigation to encompass the possibility of employment discrimination against females and thus to request gender data. The data showed that Southern Farm used "word of mouth" to fill its vacancies, it primarily hired white males for its insurance positions, and women as well as African Americans were underrepresented in the company. Further, the documentation revealed women were underrepresented in the same jobs and during the same time period that were the subject of the filed charge. Therefore, if the requested gender data confirms that Southern Farm has a hiring preference for white males, the Commission would have reasonable cause to believe that Southern Farm's preference would work to the detriment of African Americans and women in violation of Title VII. Hence, under these facts, the Commission acted well within its investigatory authority by not turning a "blind eye" to potential violations of Title VII that were directly related to the allegations raised in Thomas' charge. Thus, the alarm that Southern Farm attempts to raise by suggesting that "once a charge of any kind was filed, the EEOC would be entitled to information about the sex, race, national origin, color and religion of every employee of the respondent employer so long as they held the same job title," SF Br. at 18, is illusory. c. Finally, Southern Farm's reliance on cases holding that a gender discrimination claim (and concomitantly gender data) is irrelevant to a race discrimination charge is misplaced. Those cases are largely irrelevant to the issue in this case because they either do not involve 1) multiple forms of discrimination, 2) an additional form of discrimination arising from the same root source as the alleged discrimination, or 3) a new violation uncovered during the course of the EEOC's investigation. Additionally, the principle relied on in one case is inapplicable, and in another, appears to have been abandoned by the court in a subsequent decision. For example, the Sixth Circuit's decision in EEOC v. Ford Motor Credit Co., 26 F.3d 44, 46 (6th Cir. 1994), and the district court's ruling in EEOC v. Quick Shop Markets, Inc., 396 F. Supp. 133 (E.D. Mo. 1975), aff'd per curiam, 526 F.2d 802, 803 (8th Cir.1975) do not address the particular question before this Court at all. In Ford, the EEOC subpoena focused on one prohibited basis -- gender -- and the court's relevancy analysis centered on the temporal scope of a subpoena that sought personnel data spanning a twelve-year period. Consequently, nothing in this decision sheds light on whether the EEOC can investigate a potential violation that was not asserted by the charging party but arises from the same root source or whether gender data is relevant to a race discrimination charge. Likewise, the court's analysis in Quick Shop is unhelpful. In that case, the court refused to allow the EEOC to subpoena information relating to race discrimination against black employees because neither of the charging parties were black and therefore not aggrieved by the discrimination. The court thus decided that they lacked standing to assert this claim in their charges. 396 F. Supp. at 135-36. In light of current jurisprudence permitting Caucasians to file charges based on discriminatory conduct directed at African Americans, that standing analysis lacks any force in this Circuit. See, e.g., EEOC v. Mississippi College, 626 F.2d 477, 481-83 (5th Cir. 1980) (failure to recruit or hire black faculty members), cert. denied, 453 U.S. 912 (1981); also see Stewart v. Hannon, 675 F.2d 846, 848-50 (7th Cir. 1982) (exclusion of blacks from school principal positions); EEOC v. Bailey Co., Inc., 563 F.2d 439, 452-54 (6th Cir. 1977) (failure to recruit and hire blacks), cert. denied, 435 U.S. 915 (1978); Waters v. Heublin, Inc., 547 F.2d 466, 469-70 (9th Cir. 1976) (lower pay to blacks). Thus, the court's analysis in Quick Shop does not negate the Commission's position that the EEOC can investigate and subpoena information regarding additional violations uncovered during the course of an investigation or that stem from the same root source as the original violation. Equally distinguishable are the decisions in EEOC v. Bailey Co. and EEOC v. Central Steel & Wire Co., 1981 WL 342 (N.D. Ill. 1981). In both cases, the new violations not alleged in the original charge did not arise from the same root source, unlike the race and gender claims herein. Bailey, 563 F.2d at 447 (allegations of religious discrimination did not involve practices that affected the charging party); Central Steel, 1981 WL 342, *2 (even though information relating to blacks and females was uncovered during agency's investigation, "EEOC has not even argued that there is a practice or policy that forms a 'root source of discrimination'" with the original charge alleging individual and systemic discrimination against Latinos). Moreover, in Bailey, the Commission did not receive evidence suggesting the possibility of race discrimination from information produced by the employer during the course of its investigation of the sex discrimination charge. 563 F.2d at 450. Therefore, this Court should not consider Bailey as providing the "better reasoned approach" in resolving the claims at bar. SF Br. at 29. Finally, the ruling in General Ins. Co. of Am. v. EEOC, 491 F.2d 133, 136 (9th Cir. 1974), which Southern Farm cites for the proposition that the Commission cannot obtain "evidence going to forms of discrimination not even charged or alleged," is unpersuasive because the conclusion that the Commission's demand for information should not be enforced rested, at least in part, on the fact that the demand "reached back in time nearly eight years." Id. Further, the rationale of General Insurance has been undermined by the Ninth Circuit's subsequent holding in EEOC v. Hearst Corp., 553 F.2d 579 (9th Cir. 1977). In Hearst, that court held it was permissible for the EEOC to base its reasonable cause determination, conciliation, and lawsuit on findings of discrimination as to females and minorities, even though the filed charge alleged only discrimination against males, because the additional bases of discrimination were discovered during the investigation. Id. at 580-81. This proposition is entirely consistent with the Commission's stance in this case, and affirms the view that the EEOC is entitled to inquire into the possibility of gender discrimination against women. 3. Case Law Interpreting Relevance in the Litigation Context Has Limited Application in Defining the Scope of Commission Investigations Inconsistent with the broad construction "relevance" is to receive in the context of EEOC investigations, Shell Oil, 466 U.S. at 68-69, Southern Farm states that case law in this Circuit and other courts holding "that evidence of a type of discrimination other than that alleged by the plaintiff in a particular case is not relevant in a Title VII case to prove the discrimination alleged by that plaintiff." SF Br. at 24. For support, Southern Farm's cites to cases such as Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350 (5th Cir. 1995), in which stray remarks regarding race, sex and other categories were excluded as irrelevant evidence during the litigation of a handicap discrimination case. SF Br. at 24-26. These cases are inapposite because the standard for determining relevance in litigation is quite different from the standard of relevance in the administrative investigation. Compare Fed. R. Evid. 401 ("'[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence") with Shell Oil, 466 U.S. at 68-69 (in Commission investigations, "relevant" evidence is "any material that might cast light on the allegations against the employer"). As the Supreme Court explained in Shell Oil, courts have generously construed the term "relevant" and it is self-evident that evidence might "cast light" on an allegation without contributing to a fact finder's ultimate determination of facts critical to the issues in controversy. Shell Oil, 466 U.S. at 68. In short, the investigation of a charge is subject to a far more flexible standard of relevance than the restrictive standard for determining relevance in litigation. Hence, the cases cited by Southern Farm provide no basis for constraining the Commission's authority to ferret out discrimination and determine the veracity of the charged allegations. In fact, because this Court permits a party to file a judicial complaint that encompasses violations that were not alleged in the charge, but could be reasonably expected to grow out of the charge or the EEOC's investigation, Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000), the Commission's actual investigation of the newly discovered gender violation in this case, which arose from the same root source as the original violation, establishes that evidence pertaining to the new violation would meet even the relevancy standards for litigation. 4. A Broad Construction of Mr. Thomas's Race Discrimination Charge Establishes that the Requested Data is Directly Relevant to the Filed Charge Despite Southern Farm's repeated assertions that the requested gender data is not relevant to Mr. Thomas's charge because he did not allege gender bias, Southern Farm interestingly observes that "[t]he charge filed by Mr. Thomas that began the EEOC's investigation in this matter alleged only that he and other African-American males were discriminated against by Southern Farm in hiring insurance claims representatives because of their race." SF Br. at 8(emphasis added); see also SF Br. at 16-17 ( "[t]he EEOC Charge filed by Mr. Thomas identifies himself as a 49 year-old African-American male alleging race discrimination on behalf of himself and all African-Americans"). Southern Farm's interpretation of Mr. Thomas's charge provides additional support for the Commission's position that the gender data is relevant to the filed charge. Indeed, the actual terms of Thomas's charge,<7> broadly construed, could be viewed as alleging unlawful bias against an African American male in violation of Title VII. See Mississippi College, 626 F.2d at 483 (stating the general rule that charges filed with the EEOC must be liberally construed). This intersectional claim, which involves a subset protected class based on an inextricable combination of race and gender,<8> necessarily invites inquiry into whether Mr. Thomas was discriminated against in employment because he is African American and/or an African American male,<9> and would make the gender data requested by the EEOC's subpoena directly relevant to Mr. Thomas's discrimination charge. Indeed, given Mr. Thomas's allegations of racial discrimination in employment by Southern Farm, the gender data about Southern Farm's male and female employees would (1) provide the statistical data required to assess the impact of Southern Farm's word-of-mouth recruitment on blacks, men, and women, and (2) permit the EEOC to determine whether there is any other basis on which Southern Farm discriminates against African Americans. Cf. Jefferies, 615 F.2d at 1032 (recognizing "discrimination against black females [could] exist even in the absence of discrimination against black men or white women"). That information would then enable the Commission to decide whether Southern Farm engaged in unlawful racial discrimination against Mr. Thomas because he is an African American male, and not merely because he is black. Moreover, the gender data would enhance the Commission's ability to investigate the possibility of systemic discrimination against African American men as well as blacks in general, Shell Oil, 466 U.S. at 69 ("it is crucial that the Commission's ability to investigate charges of systemic discrimination not be impaired"), vindicating the interests of the charging party and other affected black men. General Telephone , 446 U.S. at 326 (during an investigation of a charge, EEOC acts "at the behest of and for the benefit of specific individuals," as well as "to vindicate the public interest in preventing employment discrimination"). Also see EEOC v. First Nat'l Bank of Jackson, 614 F.2d 1004, 1006 (5th Cir. 1980) (noting "EEOC determined that there was reasonable cause to believe that the bank had discriminated against blacks and black males," but not against charging party individually), cert. denied, 450 U.S. 917 (1981). Under these circumstances, an inquiry designed to "prove or disprove" whether Southern Farm discriminatorily excluded Mr. Thomas from insurance positions with the company because he is African American and male arguably requires the acquisition of gender information as well as evidence of racial disparity. Therefore, the intersectional race/gender claim that Southern Farm deduced from Mr. Thomas's charge makes clear that the district court's refusal to enforce the Commission's subpoena on a relevancy ground is unsustainable. CONCLUSION Southern Farm's objections to the scope of the EEOC's subpoena are not valid. Under its statutory authority, the EEOC is entitled to investigate whether Southern Farm has discriminated on the basis of gender as well as race since the possibility of sex discrimination is grounded in the same root source as the charged violation. Consistent with this investigation, the Commission is entitled to have information about the gender of Southern Farm's employees to determine whether the company's hiring practices violate Title VII. This Court is therefore urged to reverse the district court's order denying enforcement and order Southern Farm to produce the requested gender data. Respectfully submitted, GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER, Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 (o); (202) 663-7090 (fax) CERTIFICATE OF SERVICE This is to certify that on May 9, 2001, two copies of the foregoing brief and one copy of the record excerpts were mailed first class, postage prepaid, to the following counsel of record: M. Nan Alessandra, Esq. David M. Korn, Esq. PHELPS DUNBAR, LLP 365 Canal Street, Suite 2000 New Orleans, Louisiana 70130-6534 PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4731 May 9, 2001 REVISED CERTIFICATE OF COMPLIANCE Pursuant to 5th Cir. R. 32.2 and .3, the undersigned certificate certifies this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7). 1. EXCLUSIVE OF THE EXEMPTED PORTIONS IN 5th Cir. R. 32.2, THE BRIEF CONTAINS __________________ words. 2. THE BRIEF HAS BEEN PREPARED IN PROPORTIONALLY SPACED TYPEFACE USING: Software Name and Version: Wordperfect 8 (Corel) in (Typeface Name and Font Size): Times Roman 14 pt. THE UNDERSIGNED UNDERSTANDS A MATERIAL MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR CIRCUMVENTION OF THE TYPE-VOLUME LIMITS IN Fed. R. App. P. 32(a)(7), MAY RESULT IN THE COURT'S STRIKING THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF. _______________________________________ Signature of filing party 1 Southern Farm also "takes issue with the standard of review the EEOC proposes this Court should adopt when reviewing the district court's decision," SF Br. at 11, asserting that the correct standard is clearly erroneous. Id. at 13. As the Commission stated in its opening brief, even though this Court has applied different standards of review depending on whether the issue is a question of law or mixed question of law and fact, and in some instances has resolved an appeal from a subpoena enforcement action without asserting a standard of review at all, "whatever the review standard, the district court here misstated and misapplied relevant case law in denying enforcement of the Commission's subpoena and therefore its judgment should be reversed." EEOC Br. at 11. 2 Essentially, the Court determined that a valid charge identifies the groups of persons believed to have been discriminated against, the categories of positions from which they had been excluded, the methods by which the discrimination may have been effected, and the periods in which discrimination is alleged to have been practiced. Shell Oil, 466 U.S. at 73. Although Southern Farm does not challenge the validity of Mr. Thomas's charge, we note that it is indeed valid since Mr. Thomas alleged that Southern Farm discriminated against him and other African Americans applicants for employment with the company and that he believed he had been "harmed by a continuing pattern and practice or policy of race discrimination in violation of Title VII" and state law. R.E.18. The charge also identified October 17, 1997 to May 15, 1998, as the time period during which the discrimination took place. Id. 3 Even if Southern Farm is complaining that the EEOC did not provide notice of the gender claim until after the investigation commenced and the gender data was requested, that delayed notice should not inhibit the Commission's power to probe this newly discovered violation nor does it result in any prejudice to Southern Farm. By alerting Southern Farm of the new violation while the investigation is pending, the Commission provided Southern Farm with the opportunity to provide information that will either "prove or disprove" the claim. Further, because the Commission's reasonable cause determination will rest on its findings arising from the investigation, Shell Oil, 466 U.S. at 68, Southern Farm will have an opportunity to conciliate if the EEOC finds reasonable cause to believe that it discriminates on the basis of gender. EEOC Br. at 22-23, 28-29. 4 Southern Farm's argument that Shell Oil makes the holding in EEOC v. General Electric Co., 532 F.2d 359 (4th Cir. 1976), inapplicable to this case also lacks merit. SF Br. at 26-29. The Court in General Electric held that the EEOC can investigate evidence of discrimination uncovered during the course of its investigation, even if the violation was not alleged in the filed charge. See EEOC Br. at 19-21. The Court in Shell Oil did not address this investigatory issue, and hence, its decision should not be construed as having any effect on the Fourth Circuit's decision. This Court therefore should decline Southern Farm's invitation to consider General Electric as overruled by Shell Oil, particularly since General Electric was correctly decided. This Court should also reject Southern Farm's argument that the holding in Dennis v. County of Fairfax, 55 F.3d 151 (4th Cir. 1995) demonstrates that "the Fourth Circuit appears to [have] retreat[ed] from General Electric and adopt[ed] the holding in Shell Oil," SF Br. at 29 n.13. In Dennis, the plaintiff filed an EEOC charge alleging racially "disparate disciplinary treatment" in violation of Title VII. Id. at 153. The Commission investigated this claim, and only this claim, and found no cause. Id. Nevertheless, the plaintiff filed a lawsuit alleging racial discrimination in hiring, promotion and training. Id. at 156. In deciding that these race claims were "procedurally barred," the Fourth Circuit, citing to General Electric, explained that the plaintiff had not exhausted his administrative remedies on these claims because they "exceed[ed] the scope of the EEOC charge" and were not "charges that would naturally have arisen from an investigation thereof." Id. That ruling is entirely consistent with the Fourth Circuit's decision in General Electric because, if the claims pressed by the Dennis plaintiff in litigation had been investigated while his charge was pending, the Court would have allowed him to sue on these claims. However, since the EEOC did not discover these uncharged violations during its investigation of the plaintiff's charge, and thus did not investigate them, the Court held that the plaintiff was foreclosed from pursuing them. Thus, Dennis provides no support whatsoever for the position pressed by Southern Farm. 5 The "fishing expedition" concerns articulated by the Equal Employment Advisory Council ("EEAC") and the Chamber of Commerce of the United States in their joint amicus brief are equally unjustified. See generally EEAC/Chambers Br. at 2, 7-8. In short, they argue that "[t]he EEOC cannot and should not be permitted to use the filing of a single charge as a license to conduct a fishing expedition into an employer's every employment practice, irrespective of its relevance to the charge being investigated." Id. at 2. The amici's argument is unfounded. Their argument is based on a mischaracterization of the scope of the EEOC's investigation, which is limited to determining whether Southern Farm engages in discriminatory hiring practices. And their argument totally disregards this Court's acknowledgment that the EEOC can use "the filing of a charge simply as a jurisdictional springboard to investigate whether the employer is engaged in any discriminatory practices," even when that " investigation . . . disclose[s], as in this instance, illegal practices other than those listed in the charge." EEOC v. Huttig Sash & Door Co., 511 F.2d 453, 455 (5th Cir.1975). Finally, the amici's suggestion that, if the Commission's expanded investigation is validated, employers will respond to similar EEOC investigations, "either by exercising extreme caution in the information they provide to the EEOC or by refusing to cooperate in investigations altogether," EEAC/Chambers Br. at 22, should be rejected by this Court. Although a subpoenaed employer is entitled to raise legitimate challenges to the Commission's subpoenas, both administratively and through objections to enforcement proceedings, the Supreme Court has made clear that an employer, as "an alleged perpetrator of discrimination," should not "be allowed to pick and choose the evidence which may be necessary for an agency investigation." University of Pa. v. EEOC, 493 U.S. 182, 193 (1990). 6 In Robinson, the Ninth Circuit ultimately rejected the argument that an African American male plaintiff had established a prima facie case of race and sex discrimination against his employer, stating that the plaintiff's "showing that Black males are statistically underrepresented cannot, standing alone, show a racially discriminatory impact when there is clearly no discriminatory impact on Blacks as a whole." 847 F.2d at 1318. That rationale is clearly at odds with this Court's holding in Jeffries, which recognized that discrimination against black females does not require discrimination against black men or white women as well. Jeffries v. Harris County Community Action Ass'n, 615 F.2d 1025, 1032 (5th Cir.1980). 7 The Thomas charge stated in relevant part: This race discrimination charge is filed on behalf of myself, L.C. Thomas II, and all other African Americans similarly situated. Like other African-American applicants for employment with Southern Farm Bureau Insurance Company ("SFBI"), I have been harmed by a continuing pattern and practice or policy of race discrimination in violation of Title VII . . . and the Louisiana Employment Discrimination Law . . . . 8 Notably, this Court has not addressed the question of whether black males are a protected subclass. See Davis v. Yazoo County Welfare Dep't, 942 F.2d 884, 886 n.5 (5th Cir. 1991) (declining "to comment in this case on whether black males represent a protected subclass, because our review is limited to the findings of the district court, [which] ... found only sexual discrimination"). However, in Jeffries, this Court recognized that "discrimination against black females can exist even in the absence of discrimination against black men or white women." 615 F.2d at 1032. Consequently, it would seem reasonable that this analysis would extend to an allegation of discrimination against a black male since both groups involve the protected immutable traits of race and gender, and any other reading, "[i]n the absence of a clear expression by Congress that it did not intend to provide protection against discrimination directed especially toward black [men]," would leave African American men "without a viable Title VII remedy." Id.; Note, Invisible Man: Black and Male Under Title VII, 104 Harv.L.Rev. 749, 750 (1991) (arguing that black males should constitute a separate class, distinct from either males or blacks, in Title VII analysis); accord Payne v. Travenol Lab., Inc., 673 F.2d 798 (5th Cir. 1982) (barring black female plaintiffs from representing black male employees in class action race discrimination suit because of conflicting and distinct litigation interests). In any event, absent a decision by this Court that black males are not a protected class under Title VII, the Commission should be free to investigate this claim. Cf. Quick Shop, 396 F. Supp. at 136 (in absence of definitive decision that different hair length standards for males and females does not constitute sex discrimination the Commission may not be foreclosed from conducting an investigation on the premises that an unfair employment practice may be involved). 9 While the Commission admittedly did not press this argument in the district court or its opening brief, an investigation into individual and systemic discrimination against African American men is reasonably related to Mr. Thomas's race discrimination allegations and actually could be a natural outgrowth of the investigation. Therefore, it would not be inappropriate for this Court to consider this theory in evaluating the propriety of the district court's rejection of the Commission's request for subpoena enforcement.