In The

Supreme Court of the United States




Decided April 2, 1984

Justice O’Connor, Concurring in part and dissenting in part

Topic: Civil Rights*Court vote: 9–0
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Joining O'Connor opinion: Chief Justice BURGER Chief Justice BURGER Justice POWELL Justice POWELL Justice REHNQUIST Justice REHNQUIST
Citation: 466 U.S. 54 Docket: 82–825Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE REHNQUIST join, concurring in part and dissenting in part.

I agree with much of what the Court has written. But the Court has deliberately declined to come to grips with the crucial threshold issue in this case: is inadequate notice a legitimate defense to a subpoena enforcement action brought by the Equal Employment Opportunity Commission (EEOC or Commission)? If it is not, the Court's concern that a meaningful notice requirement would impede the EEOC's investigations is wholly unfounded. The Court clearly suggests it is inclined to answer the question in the negative, see ante at 466 U. S. 65 -66, 466 U. S. 75 -77, but then proceeds on the assumption that the question has not been properly presented or briefed. I believe the question is before us and should be addressed.

While respondent Shell Oil Co. (Shell) has maintained throughout that a subpoena may not be enforced if the notice filed in connection with the investigation was unlawful, the EEOC has not conceded the point. In connection with the statement cited by the Court ante at 466 U. S. 66, n. 17, the EEOC conceded that questions concerning the adequacy of the notice may be raised at the enforcement proceeding. But I find no clear concession here or in the EEOC's briefs that, if notice is inadequate, a district court should then quash the EEOC's subpoena. To the contrary, the entire thrust of the EEOC's position is that investigation should not be postponed for the purpose of weighing the adequacy of the notice. That the EEOC has adamantly maintained that the notice furnished to Shell was in fact lawful need not be read as a concession that, if it had not been, the subpoena would properly have been quashed. The EEOC's view of the link between the adequacy of notice and the enforceability of the subpoena is unquestionably less than crystalline. But in such circumstances, the Court is not bound to adopt a reading of the statute that is without sound support in the statutory text.

I agree with the Court that a proper charge is a prerequisite to enforcement of an EEOC subpoena. The EEOC has broad flexibility in determining precisely what must be included in the charge. And the charge against respondent Shell was consistent with requirements laid out in the statute and regulations. I therefore agree with the Court's conclusion that the Court of Appeals erred in directing the District Court not to enforce the EEOC's subpoena.

But in my view, the Court of Appeals correctly concluded that the notice furnished to Shell was inadequate. The statute makes quite clear that the notice of charge must be more informative than the charge itself. Accordingly, I believe the District Court should enforce the EEOC's subpoena, but simultaneously direct the EEOC to furnish Shell with adequate notice of the "date, place and circumstances" of the allegedly unlawful employment practices underlying the charge.


Systemic "pattern or practice" discrimination by an employer triggers four separate but coordinated steps by the EEOC. The requirements and purposes of one of these steps -furnishing the employer with notice of a charge -can be understood only in the context of the other three.

(1) Filing a charge with the Commission. A charge is a complaint filed with the EEOC "alleging that an employer... has engaged in an unlawful employment practice...." 42 U.S.C. § 2000e-5(b). A charge may be filed by "a person claiming to be aggrieved." Ibid. Alternatively, a "Commissioner's charge" may be filed when a Commissioner decides to initiate a complaint, usually on the basis of a "pattern or practice" of discrimination. 42 U.S.C. § 2000e-6(e). A Commissioner identifies such instances of "systemic" discrimination by comparing statistics furnished to the Commission by the employer with employment statistics for the market from which the Commissioner believes the employer should be hiring. In either event, a charge is filed with the Commission, not with or against the allegedly discriminating employer. Charges must generally be filed within 180 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e). The form of a charge is flexible: the statute requires only that "[c]harges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires." 42 U.S.C. § 2000e-5(b). In the case of a Commissioner's charge, the oath or affirmation is made by the EEOC Commissioner who formally reviews the evidence suggesting a pattern or practice of discrimination.

Commission regulations provide that all charges should contain "[a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices...." 29 CFR § 1601.12(a)(3) (1983). But the regulations go on to state:

Notwithstanding the provisions of paragraph (a) of this section, a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of. A charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein.

29 CFR § 1601. 12(b) (1983). Thus, under both the statute and the regulations, a charge may be accepted by the Commission even if it lacks a full description of the "date, place and circumstances" of the alleged unlawful employment practices.

Internal EEOC guidelines set out more specific conditions applicable only to a Commissioner's pattern or practice charges. According to § 16 of the EEOC Compliance Manual (1982), reprinted in App. to Pet. for Cert. 40a-43a, the EEOC looks for employers who meet one of six statistical profiles:

(1) employers "who continue in effect policies and practices which result in low utilization of available minorities and/or women";

(2) employers

who employ a substantially smaller proportion of minorities and/or women than other employers in the same labor market who employ persons with the same general level of skills;

(3) employers who employ "a substantially smaller proportion of minorities and/or women" in their higher paid than their lower paid job categories;

(4) employers who maintain recruitment hiring, assignment, promotion, discharge or other policies not justified by business necessity "that have an adverse impact on minorities and/or women";

(5) employers who utilize restrictive employment practices that "are likely to be used as models for other employers;" or

(6) employers who fail to provide available minorities and women with fair access to employment if the employer has "substantial numbers of employment opportunities."

Members of the EEOC staff compile statistics or other factual materials to identify such patterns. The figures are passed through successive stages of staff review within the Commission and finally presented to an EEOC Commissioner in the form of a

memorandum detailing information concerning respondent's practices, the reasons for selecting the respondent (including a showing that at least one of the systemic selection standards applies to the respondent), and a description and justification of the proposed scope of the case. [ Footnote 2/1 ]

Each recommendation is accompanied by a Commissioner charge ready for signature.

(2) Notice of the charge. Once a charge has been filed with the EEOC,

the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on [the respondent]... within ten days.... [ Footnote 2/2 ]

42 U.S.C. § 2000e-5(b). The notice of charge is not the same, nor was it intended to serve the same purpose, as the charge itself. Before 1972, notice was provided by serving a copy of the charge on the employer, 42 U.S.C. § 2000e-5(a) (1970 ed.), and in 1972, the House bill would have preserved that form of notice. [ Footnote 2/3 ] But the Senate's different view prevailed. As amended in 1972, 42 U.S.C. § 2000e-5(b) expressly requires more in the notice of charge than in the charge itself. A charge need only allege an unlawful employment practice and "contain such information and be in such form as the Commission requires." Ibid. Its purpose is prospective -to initiate the investigation, to set out the bounds of the unlawful employment practices that the Commission suspects it may ultimately discover. A notice of charge, in contrast, must "includ[e] the date, place and circumstances of the alleged unlawful employment practice." Ibid. Its basic purpose is retrospective -to identify what the agency has in hand when it initiates the investigation. Thus, absent Commission regulations to the contrary, a charge might satisfy the statutory requirements even if it contained only a naked allegation of a violation of Title VII. The notice of charge would nevertheless have to say more, disclosing the date, place and circumstances of the conduct that triggered the complainant's suspicions in the first place. Commission regulations provide the EEOC with precisely the tools it requires to gather any additional information from the complainant that may be needed to furnish adequate notice to the employer. 29 CFR § 1601.15(b) (1983).

(3) Investigation of a charge. The EEOC has the duty to investigate all charges, 42 U.S.C. §§ 2000e-5(b), 2000e-6(e), and to that end it is vested with broad investigatory power:

In connection with any investigation of a charge filed under section 2000e-5 of this title, the Commission or its designated representative shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices... and is relevant to the charge under investigation.

42 U.S.C. § 2000e-8(a).

Equally important, the EEOC may investigate a pattern or practice charge without making any preliminary finding that there is "reasonable cause" to believe the charge is true. A threshold "reasonable cause" requirement existed before the 1972 amendments, [ Footnote 2/4 ] and would have been retained by the Senate's bill in 1972. But the House's more liberal position prevailed, and is reflected in § 2000e-5(b) as finally enacted.

(4) Disposition of the charge. A "reasonable cause" requirement does, however, remain applicable at the conclusion of the EEOC's investigation. At that stage, the Commission must either dismiss the charge or press for a remedy.

Dismissal is required if "there is not reasonable cause to believe that the charge is true." 42 U.S.C. § 2000e-5(b). Again, prompt notice to the respondent is required. Ibid.

If, on the other hand, the charge appears to be valid, the Commission must first attempt an informal resolution of the problem.

If the Commission determines after... investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.

Ibid. [ Footnote 2/5 ] Only if informal attempts to resolve the problem fail is a civil action by the Commission or the Attorney General in order:

If within thirty days after a charge is filed with the Commission or within thirty days after expiration of [time limits as affected by state or local enforcement proceedings] the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action....

42 U.S.C. § 2000e-5(f)(1). [ Footnote 2/6 ]


It is against this statutory background that we must assess the notice the EEOC furnishes to an employer in connection with a pattern or practice discrimination charge. On its face, the notice of charge served on Shell contains no information whatsoever concerning the "date, place and circumstances" of the alleged discrimination. App. 62-63. Instead, it refers to a copy of the charge itself, attached to the notice. The charge, for its part, identifies the "place" as Shell's Wood River Refinery, but supplies no "date" for the alleged violations, and includes only the most sweepingly broad and unspecific discussion of the "circumstances" of the alleged discrimination. Without elaboration, the charge alleges Shell's failure "to recruit, hire, promote, train, assign or select Blacks" in six broadly defined job categories, and its failure "to recruit, hire, promote, train, select, and assign females" to seven job categories. App. to Pet. for Cert. 44a. For good measure, the charge states that the discriminatory practices "include, but are not limited to" those specified. Ibid. Over a year after the notice of the charge was filed, the charge itself was amended to include a "date" for the alleged violations: "from July 2, 1965, continuing through at least the date of the charge." Id. at 47a. It has not escaped notice that July 2, 1965, was the day on which the Civil Rights Act of 1964 became effective.

In my view, this brief, formal, and wholly uninformative "charge," appended to an entirely empty "notice," did not comport with the language and purposes of § 2000e-5(b)'s notice requirement. A two-paragraph piece of vacuous legal boilerplate that completely omits the statistical information that the EEOC has in fact relied on in filing the charge serves none of the purposes that underlie the notice requirement.

As a threshold matter, I agree with the Court, ante at 466 U. S. 75 -77, that the notice provision is not intended to circumscribe the EEOC's investigative authority. The charge, not the notice of the charge, sets the contours of the investigation. But notice to those who are selected as the targets of a Government employment discrimination investigation has been judged by Congress to be desirable in and of itself.

I agree with the Court that a first purpose of the notice provision is "to provide employers fair notice that accusations of discrimination have been leveled against them." Ante at 466 U. S. 74. As explained in the Senate Report accompanying the 1972 amendments to Title VII, the notice requirement was "included in the bill to insure that fairness and due process are part of the enforcement scheme," and for the "[p]rotection of [the] rights of [the] respondent." [ Footnote 2/7 ] Experience teaches that Government administrative agency investigations can be prone to abuse; they are likely to be conducted more reasonably, more carefully, and more fairly, when the concerned parties are adequately notified of the causes of the investigation that are in progress.

Second, effective notice may conserve both employer and agency resources by moderating the confrontational posture of the investigation and allowing the employer to explain or clarify its position to the EEOC. In addition, as the Court points out ante at 466 U. S. 79, notice helps to ensure that documents pertaining to the investigation are preserved.

Finally, and perhaps most importantly, the notice requirement serves a purpose that is central to the statutory scheme -encouraging quick, voluntary, and informal resolution of complaints. I agree with the Court that the notice requirement must be construed so as to advance Congress' desire that the EEOC "attempt to resolve disputes through conciliation." Ante at 466 U. S. 78. The Act's overriding goal is not to promote the employment of lawyers, but to correct discriminatory practices quickly and effectively. To this end, the EEOC is always required to attempt to resolve charges first through "informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(b). The strict statutory time limits on filing a charge with the Commission, furnishing notice to the respondent of the "date, place and circumstances" of the activities underlying the charge, and investigating the charge, appear in the same subsection of the statute and are plainly intended to further the same objective. Adequate notice is especially important with respect to pattern or practice discrimination charges, which need not involve intentional or knowing misconduct. See, e.g., Teamsters v. United States, 431 U. S. 324, 431 U. S. 349 (1977).

In light of these purposes, I believe that a notice of charge adequately discloses the "date, place and circumstances of the alleged unlawful employment practice" only when it informs the respondent of the complainant's underlying reasons for filing the charge and is sufficient to permit a well-intentioned respondent to undertake immediate remedial measures if the charge is valid. It is here that I part company with the Court. I have no difficulty concluding that the notice of charge served on Shell did not meet these requirements.

The time period referred to in the EEOC's amendment to the charge can only be characterized as chosen to convey as little information as possible. It appears that the EEOC had in fact relied on Shell's employment statistics for 1970-1977, see Reply Brief for Petitioner 4 (filed Feb. 9, 1983), yet it tardily informed Shell that the "date" of the charge encompassed 1965-1981. And the allegations of discrimination in the notice of charge are so broad and unspecific as to be wholly uninformative. It is almost impossible to imagine what specific remedial actions Shell might have initiated in response to this notice of charge. It is unrealistic to expect a large employer like Shell to build a comprehensive and elaborate remedial program around a general accusation that it has failed "to recruit, hire, promote, train, assign or select" minorities and women in essentially all job categories, when in fact the charge of unlawful discrimination is grounded on far more specific and limited information. The employer surely needs to know which are the greatest problem areas, which time periods gave rise to the most troublesome statistical imbalances, what size program will be needed to rectify the problem, what labor market the employer is expected to recruit from, and so on. Though the EEOC had carefully marshaled this information before issuing a Commissioner's charge, it categorically refused to disclose any of it to Shell.

The Court's suggestion, ante at 466 U. S. 80, that the employer "cannot plead ignorance of the figures relied upon by the Commissioner" is simply mistaken. The employer supplies only one-half of the relevant figures -its own employment statistics. The EEOC supplies the other half -overall statistics for the employment market from which the employer draws. It is only in a comparison between these two sets of figures that a pattern of discrimination becomes apparent. The relevant employment market for comparison was disputed in this case. It seems extraordinary that the EEOC should decline to provide a market definition and the comparative statistics that it works with when any remedial action must involve recruitment in that same market, at a level tailored to the seriousness of the imbalances that the EEOC believes exist at the outset.

In short, I find the EEOC's insistence on secrecy incomprehensible. The notice of charge served on Shell, and the EEOC's subsequent "stonewalling," do not serve the design and purpose of Congress to encourage prompt, voluntary correction of discriminatory employment practices. The notice and other procedural requirements of § 2000e-5(b) demand that the EEOC start with a more informative approach. There is time enough for litigation if the employer proves recalcitrant. At the outset, the EEOC's main interest should be to encourage voluntary remedial action. The statute unambiguously establishes that as the preferred course.


While the notice of charge to Shell was deficient, the Court of Appeals erred in suggesting that the subpoena should not be enforced until the deficiency had been rectified. Title VII places only minimal limits on the Commission's power to gain access to information: the information must "relat[e] to unlawful employment practices" and be "relevant to the charge under investigation." 42 U. S. C. § 2000e-8(a). The material sought by the EEOC from Shell is clearly "relevant" to the pattern or practice charge that has been filed with the EEOC by Commissioner Norton. The material also "relates to unlawful employment practices" covered by Title VII. Finally, § 2000e-8(a) presupposes that the underlying charge is itself valid. The charge here was accepted by the Commission and is indisputably valid, notwithstanding its generality. As noted supra at 466 U. S. 84, the statute vests the Commission with absolute discretion to determine what constitutes a valid charge, and that discretion has not been significantly narrowed by EEOC regulations. The requirements of § 2000e-8(a) were thus fully met.

There is no direct link between the EEOC's subpoena powers and its duty to notify employers of filed charges -the notice of charge does not define the permissible scope of an EEOC investigation. The Commission's strong interest in avoiding a "minitrial" on every discovery request makes it inappropriate for the enforcement of §2000e-8(a) discovery requests to turn, at the outset, on the EEOC's compliance with §2000e-5(b)'s notice requirement. I agree with the Court, therefore, that the EEOC's subpoena should have been promptly enforced without more ado.

But I agree with the Court of Appeals that the EEOC has failed to comply with the notice-of-charge requirement. Accordingly, since the issue was properly raised, I believe the EEOC should be informed by the District Court that the notice was inadequate, and directed to furnish better notice. In the unlikely event that the EEOC failed or refused to comply with such an order, the District Court might consider appropriate sanctions. 42 U. S. C. §2000e-9; 29 U. S. C. § 161.

The District Court's power to order proper notice pendent to its enforcement of the EEOC's subpoena cannot be in doubt. The District Court clearly has jurisdiction over the subpoena enforcement action brought by the EEOC. 42 U.S.C. §§ 2000e-5(f)(3), 2000e-9; 29 U.S.C. § 161. No principle of ripeness or exhaustion requires the District Court assiduously to ignore the EEOC's violation of the statutory notice requirement while it enforces the EEOC's investigative subpoena. The Court's decision in FTC v. Standard Oil Co. of California, 449 U. S. 232, 449 U. S. 238 -245 (1980), is not to the contrary, because there is no adequate substitute for the relief I believe the District Court should give Shell. An important statutory purpose -encouraging prompt, informal resolution of discrimination charges -will be irretrievably undermined if the District Court is barred from considering the adequacy of notice at the same proceeding in which it enforces the EEOC investigative subpoena. The dispute concerning the notice will not be resolvable at later stages of the controversy, and that in itself justifies resolving it at the first available opportunity. Cf. id. at 449 U. S. 246. The EEOC apparently does not disagree with the conclusion that the District Court may address the adequacy of notice at a subpoena enforcement proceeding. See ante at 466 U. S. 66, n. 17.

Disclosure to the employer of the information relied on by the Commissioner who files a pattern or practice charge does not open the door for litigation by an employer seeking to obstruct or delay the EEOC's investigation: the accuracy or reasonableness of a charge is not a justiciable issue at the investigatory stage. That a charge, or the information on which it is based, is erroneous, inaccurate, incomplete, misleading, false, insufficiently substantiated, outdated, or otherwise unreliable is not relevant to the enforcement of § 2000e-8(a) subpoenas, providing that the information sought is relevant to the charge filed. The statute is unambiguous: the determination whether there is "reasonable cause" to believe a charge is true is to be made at the conclusion -not at the outset -of an EEOC investigation. With this facet of the law clarified, the EEOC has no legitimate reason to refuse to disclose the "circumstances" of a pattern or practice charge at the beginning of its investigation.


In my view, a memorandum "detailing information concerning respondent's practices, the reasons for selecting the respondent (including a showing that at least one of the systemic selection standards applies to the respondent), and a description and justification of the proposed scope of the case," see EEOC Compliance Manual § 16 (1982), would more than satisfy the requirement of fair and meaningful notice. The EEOC Commissioners apparently feel the same way when it is they who have to be notified -it is their internal guidelines that require the preparation of such a memorandum before a Commissioner will sign a pattern or practice charge. There is absolutely no need or justification for supplying this information to the complainant but concealing it from the employer, who is most able to take positive and prompt remedial action.

Accordingly, I would vacate and remand with instructions that the subpoena be enforced and that the EEOC be directed to provide Shell with meaningful notice of the date and circumstances of the alleged unlawful employment practices.


[ Footnote 2/1 ]

EEOC Compliance Manual § 16 (1982), reprinted in App. to Pet. for Cert. 43a.

[ Footnote 2/2 ]

See also 42 U.S.C. § 2000e-5(e). Similarly,

[i]n the case of any charge filed by a member of the Commission... the Commission shall, before taking any action with respect to such charge, notify the appropriate State or local officials....

42 U.S.C. § 2000e-5(d).

[ Footnote 2/3 ]

See H.R.Conf.Rep. No. 92-899, p. 16 (1972). Before 1972, however, a charge also recited the "facts" of the allegedly discriminatory conduct. 42 U.S.C. § 2000e-5(a) (1970 ed.).

[ Footnote 2/4 ]

The original version of this subsection provided in pertinent part:

Whenever it is charged in writing under oath by a person claiming to be aggrieved, or a written charge has been filed by a member of the Commission where he has reasonable cause to believe a violation of this subchapter has occurred (and such charge sets forth the facts upon which it is based) that an employer... has engaged in an unlawful employment practice, the Commission shall furnish such employer... with a copy of such charge and shall make an investigation of such charge, provided that such charge shall not be made public by the Commission.

42 U. S.C. § 2000e-5(a) (1970 ed.).

[ Footnote 2/5 ]

Similarly, the EEOC must grant a State in which the alleged discrimination has occurred "a reasonable time, but not less than sixty days... to act under such State or local law to remedy the practice alleged." 42 U.S.C. § 2000e-5(d).

[ Footnote 2/6 ]

Civil actions alleging pattern or practice discrimination are brought by the Attorney General. The complaint must "se[t] forth facts pertaining to such pattern or practice...." 42 U.S.C. § 2000e-6(a).

[ Footnote 2/7 ]

S.Rep. No. 92-415, P. 25 (1971).

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