Equal Employment Opportunity Commission v. Sterling Jewelers Inc., 801 F.3d 96

Background

EEOC received 19 charges (2005–2007) from women at Sterling Jewelers stores in nine states alleging company‑wide sex‑based pay and promotion discrimination; 16 charges claimed a pattern or practice.
EEOC consolidated the charges under investigator David Ging, requested company‑wide policies and computerized personnel data, and obtained Dr. Lanier’s company‑wide statistical analysis showing significant pay and promotion disparities disadvantaging women.
The parties entered mediation and signed a confidentiality/mediation agreement; addenda permitted certain mediation materials (including Dr. Lanier’s analysis) to be placed in the EEOC investigative file if mediation failed.
Mediation failed; the EEOC issued a Letter of Determination finding a nationwide pattern or practice and sued Sterling in federal court (W.D.N.Y.).
During discovery, EEOC investigators invoked deliberative privilege and gave uncertain testimony; Sterling moved for summary judgment arguing EEOC failed to conduct the required pre‑suit investigation, and the magistrate and district court granted summary judgment for Sterling.
On appeal, the Second Circuit held that courts may review only whether the EEOC conducted an investigation (not its sufficiency), found the EEOC had conducted a nationwide investigation, vacated summary judgment, and remanded for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether courts may review sufficiency of EEOC pre‑suit investigation	EEOC: courts may review only whether an investigation occurred, not its sufficiency	Sterling: EEOC’s investigation was inadequate for a nationwide suit	Held: Review is limited to whether an investigation occurred; courts may not review sufficiency
Whether EEOC conducted any pre‑suit investigation into nationwide claims	EEOC: consolidated charges, obtained company‑wide docs and statistical analysis, interviewed charging parties	Sterling: investigators’ memory gaps and privilege invocations show no meaningful investigation	Held: EEOC conducted multiple investigatory steps adequate to show an investigation occurred
Whether the EEOC’s investigation was nationwide in scope	EEOC: 19 charges from nine states, Ging treated charges as "class" charges, retained company‑wide data and analysis	Sterling: "class" ambiguous; investigation did not give notice of nationwide suit; mediation privilege limits reliance on Lanier analysis	Held: Investigation was nationwide—geographic spread plus company‑wide data and policies show nationwide scope; Dr. Lanier’s analysis could be used in EEOC’s internal determination
Whether mediation confidentiality precluded EEOC from relying on Dr. Lanier’s analysis in its investigation	EEOC: addendum permitted investigator to receive analysis and include it in the investigative file	Sterling: confidentiality agreement barred reliance on mediation materials to support LOD	Held: Addendum and consent permitted EEOC to review the analysis for its internal reasonable‑cause determination; EEOC could rely on it to show scope of investigation

Key Cases Cited

Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015) (judicial review of EEOC conciliation requirement is narrow and limited to enforcing statutory process)
Ricci v. DeStefano, 557 U.S. 557 (2009) (Title VII prohibits certain discrimination by employers)
EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984) (courts may not second‑guess the nature and extent of EEOC investigations)
EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012) (EEOC investigation scope is within agency discretion; lack of pre‑suit investigation fatal)
McElwee v. County of Orange, 700 F.3d 635 (2d Cir. 2012) (standard of review for summary judgment)
Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002) (Title VII does not define investigation or prescribe specific investigatory steps)