*1 Jay al., et Petitioners- Dr. N. ROGERS Appellees,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Respondent-Appellant.
No. 30651. Appeals, Court of
United States Circuit. Fifth 21,
Dec. 1971. Rehearing
Rehearing En Banc Denied Jan.
Godbold, Judge, specially Circuit opinion;
concurred Roney, filed Cir-
cuit Judge, opinion. dissented filed
juncture I cannot be certain that the acts charged pro- are not the Act’s within scriptions. April On 11,1969, Josephine Chavez filed respondent EEOC, with the *3 pursuant 706(a) VII, Section of Title 2000e-5(a), 42 U.S.C.A. § verified employment o.f against petitioners Jay J.S. and N. Rogers, optometrists who doing busi Atty., Stanley Halley, P. Marian ness as Optical.” “Texas State The C., Hebert, E. Counsel, Gen. E. O. Wash- stated in full: Atty., ington, C., Cooper, P. Gen. D. Julia “The company above has discriminated Atty., Nicholas, Beau- U. S. Robert Asst. against me my because of C., mont, Tex., Copus, E. E. O. David origin Spanish surnamed American Washington, C., respondent-appel- for D. by: lant. my job from with- a. Terminated me Bradford, Q. Keith, Robert C. M. out a I the reason. Gonsoulin, Mehaffy, Weber, Keith & Spanish Americán em- surnamed Beaumont, Tex., petitioners-appel- for ployed fe- with seven Caucasian lees. males who abused me. manager my told was all- me work GOLDBERG, Befоre and GODBOLD go right he to let me but had RONEY, Judges. [sic] Circuit because of friction. Judge: GOLDBERG, Circuit segregating patients.” b. May Equal Employment In Opportunity of 1969 the Commission com- charge, preliminary menced case and comes us serving posture. copy petitioners. undefinitive of it on We are asked investigative limit at the Frustrated threshold the unsuccessful efforts to scope voluntary Equal Employment Op- production secure of materials ground portunity investigation, considered Commission on the relevant to its statutory the thority Commission seeks evidence of a Commission invoked its au- petitioners and issued proscribed by Demand for Access to Title VII Evidence.2 ad- Rights Judge concerning dition Civil Act of to information 1964.1 Godbold, expressed petitioners’ for in Chavez other of the reasons best concurring sought opinion, ployees, production his permits the dis- Demand covery. pertaining Though my justiciable data to or inter- contained patient applications pretation charged petitioners of the acts differs my Godbold, maintain the course from Brother of their also business. discovery, twenty-day statutory Within the period;3 sanction the this covered U.S.C.A. this sub- §§ 2000e 2000e-15 chapter (1964). and is relevant investigation.” under 2000e-8(a) provides: 2. 42 U.S.C.A. provides investiga- 2000e-9(c) 3. 42 “In U.S.C.A. § connection with pertinent part : of a filed under section twenty days title, “Within 2000e-5 of after this the Commission serv- upon any designated person charged representative or its ice shall at under to, all reasonable section 2000e-5 of title times have access this of a de- purposes examination, pro- for mand and the the Commission for the right copy any any per- documentary evidence of duction of evidence or for being permission investigated proceeded copy son to examine or to evi- employ- relates to unlawful distinguished judge, Equal district trial Em- in a federal petitioners filed ployment Commission, modify Opportunity petition set aside or court a Demand, Judge Roney. timely appeal, briefs on Ac- answered and the EEOC cordingly, purposes of cross-petitioned the merits of for enforcement. appeal, portion granted partial will treat latter en- court district charge, Demand, denying of Mrs. Chavez’s as the district forcement of the did, petitioners pa- court to mean request for access to Commission’s afford their different treatment Rogers E. applications. tient origins. depending on their ethnic D.Tex.1970, F.Supp. 422. The EEOC appeals partial order4 enforcement Employment I. Practice Unlawful court the district and contends that granted ac- the Commission should have interpreta- On the basis of the above majority applicаtions. The cess these portion of the second of Mrs. *4 the agreement that in court is of this charge, the court Chavez’s below denied against Evidence for Access to Demand the Demand for Commission’s access to in toto. petitioners be enforced should petitioners’ patient applications the be- cause the had failed show that considering district court’s the Before “aggrieved” person a Mrs. Chavez was refusing justifications enforcement an unlawful necessary Demand, I find of the meaning 703(a), the within of Section interpretation which should consider 2000e-2(a). 42 In the U.S.C.A. words § complaint. Mrs. Chavez’s be accorded of the trial court: nor the EEOC court Neither interpreted district “ arguendo Accepting . . . complainant’s that if Peti- Commission’s contention alleging patients” “segregating as ‘segregated patients’ in tioners fact required per or “Mrs. might practice so of- then such a patients of to attend a mitted sensive Mrs. Chavez’s sensibilities origin not to ethnic others.” certain her in as make uncomfortable EEOC, Rogers F.Supp. supra, 316 at v. job, showing that there still is no she interpretation, which 425. Such ‘aggrieved’ in is plated by the sense contem- endorses, very Judge well Godbold e., 706(a), by the em- i. § certainly reasonable, but neither pursuit ployer’s of an ‘unlawful compulsory compelling. nor This case practice’ ployment within 703.” § was tried and the trial court’s conclu Rogers EEOC, supra, F.Supp. v. 316 solely interpretation reached on the sion 425. petitioners discrimi among on the basis of their clients nate disagree fundamentally with origin. This is patient’s national position. district court this may While practical inter both a reasonable and lightly the viewed connection have grips prefer pretation, to come to and I alleged petitioners' between the discrimi case as the fundamentals this and Mrs. nation claimant, the learned and viewed sensibilities, I Chavez’s think that conformity provi- 368, 4; dence F.2d 369 n. 397 International 2000e-8(a) Workers, this sions section Brotherhood of Electrical Lo title, person EEOC, file in the dis- such No. 5 v. cal United States 3 Cir. cert, 1969, 248, United for the 1968, denied, trict court of the States 398 E.2d judicial resides, 628, he 1021, district which L.Ed.2d 393 U.S. 89 S.Ct. 21 business, found, Employment or transacts and serve En 565. See also General petition 1971, terprises, EEOC, for an Commission Inc. v. 7 Cir. modifying 783; EEOC, court or set- order of such 440 F.2d Graniteville Co. v. ” ting 1971, 32; . aside such demand. . 4 F.2d Bowaters Cir. 438 Paper Corp. EEOC, v. Southern 6 Cir. modifying 4. district court’s order cert, 1970, 1970, 799, denied, final, appealable un- Demand order 241, 942, L.Ed.2d 400 U.S. 91 S.Ct. 27 der'28 1291. Overnite Trans- U.S.C.A. portation 1968, 5 Co. Cir. 246. 238 Telephone employee relationship his Parham Bell v. Southwestern between 421;
working signifi- Green v. Co., of such environment is F.2d McDonnell-Douglas E.D.Mo.1970, statutory pro- Corp., as entitled to cance to bе 846; F.Supp. v. Medi- United States tection. D.S.C.1969, Soc’y Carolina, cal of South VII, 703(a) (1) Section of Title Furthermore, regard F.Supp. 2000e-2(a) (1) provides that U.S.C.A. § legislation broad-gauged innovation prac- it shall be an unlawful principles as are to be charter employer tice for an “to fail or refuse experience, explicated by elucidated and time, discharge individual, hire or to Therefore, my expertise. it is against any otherwise discriminate employees’ psychological belief that respect compensa- individual with to his statutorily fringes well as economic terms, conditions, privileges tion, protection entitled to from employment, such individual’s abuse, “terms, phrase and that the condi- race, color, sex, religion, or national tions, privileges employment” origin.” language evinces a Con- expansive concept is an Section 703 gressional intention to discrimina- define sweeps protective within its ambit possible tion in the terms. broadest Con- creating working environ- gress specific chose neither to enumerate heavily charged with ethnic or discriminatory practices, nor to elucidate I do not wish racial discrimination. parameter extenso *5 holding interpreted that an em- as be ployer’s Rather, pursued nefarious activities. of an ethnic mere utterance path by being uneonstric- of wisdom engenders epithet offen- or racial which tive, knowing change that constant is the feelings employee within in an falls sive day seemingly of our and that the order proscription But of Section 703. present reasonable easily of the can willing simply the same token I am injustices become atmosphere discriminatory hold that a employment morrow. Time was when ever could under no set of cirсumstances discrimination tended to viewed as a prac- employment constitute an unlawful distinguishable series of isolated and working readily can envision tice. One events, manifesting itself, example, heavily polluted so with dis- environments employer’s practices hiring, in an completely destroy as to crimination firing, promoting. today and But stability psychological and emotional ployment discrimination is a far more minority group workers, and think complex pervasive phenomenon, and of Title aimed at Section 703 VII was the nuances and subtleties of discrimina- practices. eradication such noxious tory employment practices longer are no confined to bread and butter issues. urge, nevertheless, Petitioners wages As employment and hours of take portion second of Mrs. Chavez’s management-labor subordinate roles in charge could not relаte to an unlawful relationships, employee the modem makes employment alleges practice ever-increasing demands in nature of petition discrimination directed toward intangible fringe Recognizing benefits. patients any ers’ and not em toward importance benefits, of these we ployee. Essentially petitioners’ conten ignore pro- should neither their need for discriminatory is tion their treat tection, nor ourselves to their blind ment or classification of is not potential misuse. any employee directed toward acutely We must be and conscious that because of such discrimination of the fact that Title VII of the Civil complain cannot she Rights Act of any differently any 1964 should be accorded other treated than interpretation eisegesis liberal employee. However, petitioners’ order to ef Congress purpose fectuate the interpretation is not consistent with the inconvenience, unfairness, eliminate the recently accorded the Su Title VII and preme Griggs humiliation of ethnic discrimination. Court. Duke Power 849, based) employer has 424, that an . . . Co., S.Ct. 401 U.S. engaged in an unlawful held that 158, the Court L.Ed.2d practice, . . shall an the Commission intent absence of such make an an otherwise does not redeem employment practice, and unlawful proscriptions thrust VII’s of Title matters, In relation Sec- substantive consequences at the or effects aimed seemingly requires 706(a) that the an and not at charge (1) forth facts set Hence, employer’s petition- motivation. (2) allege based, it is an un- intentionally ers’ direct failure to employment practice. lawful discriminatory treatment toward Mrs. Concerning proper criterion simply not material Chavez is determining applied finding employment prac-. fаctually not a sufficient and Moreover, petitioners’ tice. I believe that comports requirements of the with the argument does not countenance 706(a), parenthetical clause of Section possibility employer’s distinct has believe the Fourth Circuit patient discrimination constitute a adopted standard consis both designed subtle scheme to create a work- underlying policy tent of Title with the ing imbued with discrimina- environment promotive purposes VII of the ultimately minority tion and directed objectives in its embodied enforcement group employees. patently As discrimina- provisions. In Graniteville Co. v. tory outlawed, practices become those em- Cir., 1971, 32, 38, that court ployers general pursuing policy bent on stated: illegal by Congressional declared man- purpose “The under sec- undoubtedly date will more devise tion 706 is to initiate the EEOC sophisticated perpetuate methods to dis- investigation, not to state sufficient among employees. peti- crimination prima facts to make out a facie case. alleged patient tioners’ *6 parenthetical clause section 706 may very just sophisticated well be such a (a) only requires allega- a sufficient so, and, Chavez, method if then as give tion to EEOC notice of what primary object of the investigate put it is and the re- treatment, directly suffers spondent practice notice of the sequences practice of such a and en- is charged. violation with which it is protection titled to provisions accordance with scope prohibited “The of of Title VII.
under Title VII is broad. The section
706(a)
charges
requirement that
state
Sufficiency
Charge
II.
of
they
the facts on which
are based must
though
Even
I would hold that a
accordingly
given
be
a flexible inter-
working
charged
heavily
environment
allegations
pretation
applied
as
of
may
with discrimination
constitute an
employment prac-
different unlawful
practice,
unlawful
I must nevertheless
charging party
alleging
tices.
If a
is
resolve whether or not Mrs. Chavez’s
specific
incident as a
of
violation
“segregating
patients”
of
VII,
requested
Title
such as denial of a
trigger
sufficient
the Commission’s
promotion or the termination of his
investigatory functions.
I am met at the
employment, may
appropriate
be
legislative guidance.
outset with scant
require
degree
specificity
some
of
portion
706(a)
The relevant
of Section
charge’s allegations. However,
VII,
2000e-5(a)
of Title
42 U.S.C.A. §
sophisticated general policies
prac-
and
provides:
suscepti-
tices of discrimination are not
charged
writing
precise
“Whenever it is
ble to such
delineation
by person сlaiming
layman
under oath
position
carry
to be
who is in no
aggrieved,
(and
full-fledged
.
.
.
out a
him-
”
forth
facts
which it is
self
.
.
.
agts
Applying
petitioners’
segregation
this standard to the
that
patients
instant
case,
complainant’s
encompass
I believe that
could
an unlawful em-
ployment
“segregating
practice justifies
patients”
in-
vestigation.
allegation
constitutes a
believe
sufficient factual
that this conclu-
general
in-
sion
inform the EEOC what
consistent with the
inter-
vestigate
pretative
notify
given
treatment
been
that has
provisions
to the
with which
Title
enforcement
charged.
judiciary.
VII
I am
the federal
unmindful of the
might
fact
that Mrs. Chavez
have de-
In those cases in which a liberal con-
specific
segre-
tailed the
act
acts
given
struction has been
to various
gation
complains.
of which she
How- procedural provisions of Title
en-
VII’s
ever,
obscurity
involution
process,
forcеment
the courts have found-
possible
employment prac-
unlawful
liberality
ed their
on number
tice in this case demand
a flex-
practical
First,
considerations.
courts
interpretation
ible
accorded to this
recognized
have
that these enforcement
accept
requirement and that a court
provisions
lay-
were
fabricated
generalized
allega-
as sufficient
factual
proceedings,
initiated
intended to be
tion which in connection with an element-
utilized
the most unlettered and un-
employment prac-
al or common unfair
sophisticated employees. Sanchez v.
rejected
tice
precise.
otherwise
as im-
Brands, Inc.,
Standard
455; King Georgia
Co.,
F.2d
v.
Power
N.D.Ga.1968,
F.Supp.
943. Further-
Turning
sufficiency
more, federal decisions have noted that
in relation to the second re
complainants are often
of “the
unaware
quirement,
allegation
that of an
of an
panoply
full
of discrimination which
employment practice,
note
[they] may
frequent-
have suffered” and
problem
that a
exists because
the in
“ignorant
ly
thorough-
are
of or unable to
definiteness of Mrs. Chavez’s
ly
discriminatory practices
describe the
Assuming
underlying
that the
facts show
they
subjected.” King
to which
Georgia
are
petitioners
some manner
Co.,
F.Supp.
supra,,
Power
segregating
patients,
their
then the
947. See Sanchez v. Standard
particular
segregation may
act or acts of
Inc., supra, 431 F.2d at
This is
not constitute an unlawful em
particularly true where the discrimina-
ployment practice. However, I do not
highly
complex
is embodied in a
certainty
view
of violation as a condition
practice.
abstruse
See Graniteville Co.v.
precedent
investigation.
to EEOC
A
*7
EEOC, supra. Finally,
recog-
it has been
charging party’s
allege
failure to
faсts
charge
nized that a
of discrimination
which,
true,
conclusively
if
show a
initiates
an administrative fact-find-
violation of Title VII should not be fatal
ing procedure in the context of a non-
the effectiveness of
adversary investigation in which the
Rather,
charge
I think that a
is sufficient
simply attempts
Commission
to deter-
proceedings
initiate EEOC
if
its
mine whether reasonable cause exists to
allegations
factual
reasonably
could
en
charge
believe that the
is true. General
compass, upon
investigation,
a full
an
Employment Enterprises,
Inc. v.
employment practice.
unlawful
In the
783;
Graniteville
petitioners’ patient
instant case the
EEOC, supra;
Co. v.
Sanchez v. Standard
segregation
employee
could
sobe
demean
supra.
Inc.,
ing as to constitute an
condi
invidious
employment,
tion of
and the Commission
These considerations
me
lead
right
investigate
should have the
аnd
the Commission must
conclude
be
employ
expertise
determining
its
permitted
complainant’s charge
to view a
particular
whether or not the facts
in its broadest reasonable sense. Since
enterprise give rise to an
allegations
unlawful em
the factual
of Mrs. Chavez’s
ployment practice. Thus,
possibility
charge
reasonably encompass
could
segregated
contact
have
patients,
practice,
Com-
employment
un-
would be
that this
and
empowered to ascertain
should be
mission
sub-
under
employment
alleged patient
lawful
the factual contours
(2).
(1)
brief
(a)
EEOC’s
sections
make
determi-
discrimination
19) says
(p.
this:
“reasonable
as to existence
nation
not con-
emphasize that I do
I
inter-
cause.”
also be
The instant
per
is a
Rogers’
patient
alleging
discrimination
clude that
preted
hold
do
per-
Nor
I
of Title VII.
minority
se
group emрloyees
violation
demonstrating that
Anglo-
the burden
that
patient
have contact with
mitted to
existent,
segregation,
is such
if
clearly
patients.
con-
This
Saxon
employment as to
condition of
malefic
condition
stitutes an unlawful term or
statutory
interdiction is
constitute a
employment
Commission
gossamer
simply
I
one.
conclude
investigate,
authority
one
has
statutory
possesses the
Commission
justified under
could not
investigate psychological
authority to
Rogers
facts,
if
were to
set of
even
fringes
employment relationship
in an
assignment
claim that
and to come to a conclusion as to whether
ployees
the result of customer
was
case,
not,
particular
in the
preference.
cupola
the curative
activities are within
agree
pos-
I
this is a
with EEOC that
Therefore, assuming that
of the Act.
Thus
sible and rational construction.
exist,
patient segregation
found to
read,
independently of the assertion
day
judicial
I
leave to another
evalua-
discriminatory discharge,
re-
claim
employment
tion of its effect on the
employment
fers to unlawful
consisting,
company’s employees.
ditions of the
2000e-2(a)
(1), of
under §
foregoing discussion,
Based
be-
Mrs.
follows
the Commission should be
and,
race,
under
(etc),
cause of her
color
granted
concerning
access to information
2000e-2(a)
(2),
of classification
petitioners’ patient
applications.
(etc.).
race,
because of her
color
Therefore,
judgment
of the district
given pri-
appeal
On this
EEOC has
court is reversed and the cause is re- mary emphasis
to the construction
proceedings.
manded for further
segregation
Reversed and remanded.
prac-
(or clients),
patients
if
such
(or
even
clients)
tice vis-a-vis the
GODBOLD,
Judge (specially
Circuit
forbidden
is nоt otherwise
themselves
concurring):
policy
law,
exists
is a
that there
environment”
“infects the total
which so
Goldberg
Judge
concur with
an un-
it constitutes
result that
allow
the District Court must
against any
lawful
access
EEOC to items 6 and 7
employee
environment.
in that
who works
My
Demand for
Access
Evidence.
given primary,
interpretation
concurrence is
result.
restricted to that
sole, emphasis
if not
accept
a construction of
Judge
The District
Court.
District
urged
has
Chavez’s
which EEOC
*8
charge
considering
and,
adopted
the
it
the
this court as an alternative to
charge
construed, rejected
as a
the
as so
(and accepted
preferred
as
construction
7.
to items 6 and
for access
basis
statute) by Judge
being within the
Gold-
Judge
hearing
District
before
The
berg,
preferred (but
as
considered
only
discussion
Fisher consisted
statute)
Judge Roney.
by
It
outside the
At
including
counsel,
for EEOC.
is
be
Chavez’s
could
thаt Mrs.
the construc-
eschewed
level EEOC
describing
sidered as
discrimination
appeal as an
on
now
which it
asserts
tion
against
she,
practiced
in that
be-
her
meaning.
alternative
Spanish
a
cause of
ethnic status as
her
emphasize
failure
the
permitted
We must
American,
surnamed
was
regard
complaint in this
by
Mrs. Chavez’s
required
employers
or to
to attend
her
aggrieved
to
(5th
show that
she is
a
1968).
RONEY, Circuit charge investigation?” is under The charge question is second whether appeal is primary on The issue this is cov- “segregating the words whether three by subchapter of ered this the Act. The more, except nothing patients,” question third is whether evidence Spanish Surnamed that the claimant is charge. is relevant to the allege unemploy- American, an unfair against Josephine Mrs. suggested It is the three words under VII of the Civil Title “segregating patients” be in- Rights 1964, 42 2000e Act of U.S.C. charge terpreted § to constitute chаrge investigation seq. origin claimant, et her national because of Chavez, Equal Em- American, filed Spanish as a Surnamed ployment Opportunity seeks patients Commission permitted to have with contact concerning ap- only. information and records group It is or of one ethnic racial plications patients service.1 argued for is not not in- obvious Commission’s thrust The records covered Act. vestigation to determine obviously relevant to such a Negro patients are ques- point records show that this turns the threshold So differently actually from others.2 treated has this tion whether objects to Optical investigation. employer Texas State and is under been made investigation. suggested, Before this line interpretation was which would argued, is entitled information and on below court argument ‘yes,’ been made that 1 No lias “d. If answer ‘c’ illegal segregation patients why they undеr in red? filled out were Respondent Optical either state or federal law. State “7. Texas representative to a make available response following A written 2 “6. Equal Opportun- Employment questio’ns: pa- ity its records of Commission Optical Does in- Texas State “a. applications for at service its tients’ any employees struct its at its Houston, Texas, Mall, 306 Northline Negro pa- facilities fill Houston facility inspection.” purposes of for applications tients’ for service pencil 2000e-8(a). ink or use black red red 3. 42 “In connection U.S.C. patients pencil any ink or blue or for other of a filed Negroes? title, than under section 2000e-5 Optical designated representa- “b. Has Texas State ever so Commission any employees Houston times have instructed its tive at all reasonable shall facility to, purposes or elsewhere? access for the of examina- copy any tion, right Optical evidence Do Texas State records of and the “c. pro- any investigated person being at its Northline service Houston, Texas, facility Mall, now relates to unlawful ceeded they tain, employment practices this sub- within the last two covered have years contained, application chapter un- filled and is relevant pencil? investigation.” in red out ink or der *10 244 appeal. protracted this It litigation clear that the dis- seems this deci- bolsters a holding trict court was correct charge that sion that such a not “under was “segregating patients” investigation” by the words the did the EEOC. not, to, and were not intended constitute difficulty granting The main the with allegation per- an that Mrs. Chavez was EEOC to the in- access records this mitted to have contact with one terpretation charge of the to be seems group patients. simply gives that it access to records place, charge In first the apparently the there is not to a that relate slightest in the record indication entire neither Mrs. Chavez nor the EEOC is any making.
before us that Mrs. Chavez had patients contact with at all. the the In essentially objection On this same place, would second these words not dispose argument of the the key charge. words to such a If Mrs. patient records discrimination would permitted Chavez were contact with charge be relevant evidence patients, un- one class the issue as to firing ethnically the Mrs. Chavez was turn fair would not Although motivated. this was segregated. patients on whether the were clearly part made the first of her Segregation patients be a would not nothing complaint, do it seems to have necessary element to such sought by the records the EEOC key words, men- mere These are not invеstigation.4 First, Spanish she gives allega- tion of which notice American, EEOC Surnamed and the tion of a well-known kind of discrimina- seeks to show discrimination records place, In the it would seem tion. third against Negroes. Second, her statement enough give easy for Mrs. Chavez to being fired friction with about because of she dis- clearer was some indication negates reasonably females Caucasian against manner, if criminated in this prob- of the records to the relevance knows such were case. Third, cited lem the cases involved. anyone she con- than had better merely indicate evidence EEOC ethnic one tact with of but may be employment discrimination other complaint. group, It does if her that be particular of dis- to a relevant ap- reasonable not seem violate not Such cases are crimination.5 procedures in- proach to thе informal Fourth, customer cerned with records. least find out at for the volved EEOC persuasive perhaps most and this is from before fact Mrs. Chavez sustaining court, the district reason for investigation of wheth- into launches argued point below not against practice discriminated er such try justify seems to be asserted here to origin. This of her national her because request use actual the records for for recognized authority has court entirely dif- in the amplify a to amend and EEOC complaint. ferent kind of charging party forth having set way present- allegations greater San- this case has been detail. ed, Inc., quite F.2d obvious that 431 v. Standard chez purpose of in- 1970). did fact that wants records (5th Cir. 455 segrega- vestigating avoid and thus clarification obtain Boots, F.2d Inc. v. 418 company discriminated 5. Blue Bell lias above “The 1969) ; (6th my origin v. South Parham Cir. me because Telephone Co., by: F.2d Spanish western Bеll American Surnamed (8th 1970) ; my job Clark United States from with- me a. Terminated Cir. Co., Supply only Spanish v. Dillon I was the a reason. out 1970) ; (4th Gas employed v. United Jenkins American Cir. Surnamed 1968). (5th Corp., F.2d 28 who abused females seven Caucasian my manager work was told me me. go allright me to let but he had friction.- patients” segregating b.
245 question employ- unfair was an of whether or not relation- against practice minority group ship ment employee between an and his work- employees ing under Title VII. case significance The environment of such ought should be statutory dealt with on that basis. it to be cloaked with protection as an ais There as to whether serious doubt question Congress, EEOC, not for the “segregating pa- the mere words question and not for us. The we must adequate tients” are to state an unfair VII, written, answer is whether Title as charge employment sufficient to meet give relationship statutory does pro- meager requirements due the most tection. Not whether could or should necessarily process. These words do not —but whether it does. all, employment and could relate to things standing many that, mean so question The answer to this come must charge any alone, they following to cannot be said provision from the of the stat- particular employment discrimination. ute: by us cited the cases to each employment 2000e-2. Unlawful EEOC, re- contained words — practices Employer promoting lating hiring; firing to practices employees with at least some conelu- (a) employ- It shall be an unlawful suggestion sionary dis- there practice ment employer— for an because crimination in one of these areas (1) to fail or refuse to hire or to religion, sex, race, color, na- or of the discharge any individual, or otherwise origin employees.6 Even tional оf the against any to discriminate individual though policy that are committed to a we respect compensation, to his way stating requires little terms, conditions, privileges or of em- charge,7 where, here, the words as ployment, because of such individual’s speak to not on their face do race, color, religion, sex, national or employment practices, claimant origin; or required to indicate should at least be (2) limit, segregate, classify or alleged em- to her facts relate how the any way employees in his reasonably be ployment, and how can deprive deprive any or tend individ- discriminated she has been inferred that ual, employment opportunities origin. against of her national because adversely affect his status otherwise However, by permitting the words employee, in- an such because argument be embellished color, sеx, race, religion, dividual’s says it is as to origin. get question of investigating, we nothing There is here to indicate within is included subchapter Congress prac- employment intended of unlawful the ambit general Congress of em- condition in Title deal proscribed tices employees re- ployment applicable there to all must decide whether We VII. sex, religion, gardless race, color, em- of their any legal a claim basis for origin. against is re- The section or national practices ployer’s employment stricted patients can constitute general minority encompass business against does not ployment the ob- practices. must claimant statute. group employee under this 1971) Georgia (9th ; Co. Power contain Cir. to us 237 cited the eases 6. All of 1969) ; (5th EEOC, firing pro relating hiring, Cir. charges F.2d 462 v. 412 supra; EEOC, Boots, Employ v. employees: Inc. Bell Blue General motion Corp., supra; EEOC, Gas Enterрrises, 440 v. United Jenkins Inc. v. supra; Inc., 1971) ; (7th v. Standard Graniteville Sanchez F.2d Cir. 783 v. Motor Hotel EEOC, Parliament House Division) Company, (Sibley (5th 1971). EEOC, Cir. F.2d 1335 1971) ; (4th No. Local F.2d EEOC, Metal Workers International Sheet Hotel v. Motor House 7. Parliament Assoc., supra. AFL-CIO v. discriminatory prac- employment prac- ject special could become an unfair of some oppor- operates permit employee tice which would tice which bring of her suit to end discrimination. tunities *12 color, religion, sex, race, or- to national U.S.C. It is not or 2000e-5. reasonable discernible, Congress igin. clearly assume that to ex- all intended These are objective employee characteristics, clude certain from establishments which seg- prohibition against readily employer The direct customer an can ascertain. regation any one section of the stat- in ref- under Act does include list not this psychological ute, to erence to anoth- emotional have them in included make-up employee. indirectly proscribes No individual er section an which race, color,' religion, sex, Finding practice. national or- such a or discrimination igin monopoly a on sen- to carries it in customer employees with service which offensive is sitivity employer’s to an discrimination em- constitute an unfair to employ- ployment practice permit customers. Once would oppor- practices such investigate are that to mat- EEOC and conciliate employment are in pub- tunities for a business in ters the customer service area of unequal individual’s not race, color, religion, of an because lic accommodations. This also sex, or- present Rights national or a conflict within the Civil igin, particular subchapter done this has Community Act since the Relations Serv- job. charged proscribe voluntary seeking The Act does not is ice practices compliance public business in un- which result under the accommoda- equal employment opportunities subchapter. tions 2000a-3 U.S.C. § personal, psychological (d). emotional or Where have such inconsistencies might Congress, clearly by that characteristics be common not been they created regardless employees various race, color, religion, sex, of their unnecessarily should created not be or- judicial national or decision. igin. the Act no in There indication is argues employee that The EEOC an Congress legislative history or aggrieved by al- claims to an “who be passing about Title was concerned VII leged practice unlawful need not be presents employer’s business whether an practice.” Insofar direct victim of such employmеnt are en- conditions for being this helpful in the decision vironmentally all, attractive whether argument case, points: overlooks two every- operation manner his suits the one, alleged first, practice must the unlawful particular individual employment if practice, unlawful be an feelings might have uncomfortable There under Title VII. the claim made employment. The unhappiness in his an that there is must abe determination up approach is not merit of kind of this we employment practice involved before simply Congress not for decision. has aggrieved get question of who to the given legislation. scope to its this Certainly thereby. this statute was per- every Any encompass of Title VII that unlawful construction intended engage might in.custom- mits conditions practice employer that an an unfair Second, er service to constitute were in. if VII even Title ployment practice would make the Civil business stretched include a Rights internally employment practice, Act inconsist- of 1964 is not which an deny- example, argues, Act ent. For Title II employer in this case while ing segregates patients, deals with customer discrimination public accommodations, providing directly prohib- by any law not covered iting segregation. cites EEOC subchapter apply certain does not contrary. authority makes 2000a(e). no establishments. 42 U.S.C. § sug- inapplicable relied However, cases under the construction a discrim- gested union in which files here customer discrimination employment suit for unlawful ination establishments those excluded practices,8 employment Certainly enough applicant is unrealistic challenges require employment specific least employees,9 per- affect done should have incumbent before an investigation. origin complain respond sons of one to an affecting employment practices persons pertinent are It to note that there origin,10 race or national another disadvantages wide-ranging investiga- employee plant complains in one the EEOC. employment in another “ respondent . . While plant.11 Equally inapplicable complying cooperative in patient cases been al- has narrowly information EEOC’s focused challenge lowed to *13 might, demands, al he if made the sub hospital,12 in a or which con- ject fishing expedi of a ‘wholesale standing cern the individuals certain addition, tion,’ become intractable. challenge sys- school investiga if its the EEOC broadens tem.13 discovery tions to the limit of a liberal In all of these cases the discrimination standard in its zeal to vindicate complained of was unlawful and it was ferreting public dis interest in out all question complain. This who could crimination, private interest authority helpful line of is not deter- may complainant it. suffer for mining question fundamental complaint specific The resolution of his engaged in an Thus, delayed.140 needlessly employment practice. argu although persuasive there are segregation notion that customer giving sweeping ments for the EEOC be utilized as a subtle scheme investigatory power, counter there are against minority purposely discriminate vailing should considerations which group employees presumes that were careful lead the Commission perpetrat- employer’s bent exercising discretion.” its ing among employees, discrimination Law, Employment Developments in the segrega- engage in would not customer Title Discrimination YII argument reason tion. Under 1964, Rights Harv.L. 84 Act of Civil segregates pa- Optical that Texas State (1971). 1109, Rev. 1218 against Mrs. tients is to disсriminate especially accurate perception was Chavez. If it not for its desire were complaint real Mrs. Chavez’ Chavez, this case. discriminate to friction job due lost her that she segregate was patients. Even would not its Spanish her in the office if raise customer such situation could obviously heritage. wanted she segregation employ- The relief of an into the realm quickly as job argument her back as have practice, was to so complaint possible. filed trary real-life She and the to human nature friction day fired. Office after she it furnishes world co-work- between because of intolerance judicial decision. an unreliable base for Corp., supra, 400 Gas v. United 11. Jenkins Workers Union 8. International Chemical 31, p. 365, F.Supp. fn. 5. Mfg. Co., F.2d at 259 v. Planters ; 186, (N.D.Miss.1966) Inter Local 368 Health Mental Sulphite Paper v. Alabama Pulp, 12. Marable Mill (M.D.Ala. F.Supp. 291, Board, Mining Mfg. 297 297 & v. Minnesota Workеrs Newport Cypress 1969) ; v. (N.D.Ind.1969). also see Co., F.Supp. 304 1284 Hospital Nonsectarian & News General Plastics, Inc., 423 F.2d 9. Carr v. Conoco 1967). (4th 648, Ass’n, 653 Cir. F.2d 375 affirming (5th 1970), F. 295 Cir. 57 ; Supp. 1281, (N.D.Miss.1969) County Montgomery v. 13. United States Express Highway Georgia Johnson 225, Education, 231- 395 U.S. Board of 1969). (5th Co., 1674, 1670, 23 L.Ed.2d S.Ct. (1969). Inc., su- v. Standard Sanchez pra. especially complaint type ers seems to that suitable for conciliation. As co-opera- charge, the record indicates supply- employer in
tive attitude sought ing EEOC. the information the EEOC’s breadth of private appears lost view of have being that Mrs. Chavez had interest job.
reinstated to her concerning pa- Since records any unfair relevant to
tients were not employment VII, by Title covered put to Optical not be should Texas State time, expense and inconvenience the revealing governmental records
authority. the decision affirm I would district court. *14 REHEARING FOR PETITION
ON FOR REHEAR-
AND PETITION EN BANC
ING CURIAM:
PER Rehearing denied Petition for Judge in panel nor of this no
and member hav-
regular on the Court s'ervice active polled ing requested the Court be bane, (Rule Federal rehearing en Procedure; Local Appellate Rules 12) Petition Rule Fifth Circuit
Rehearing is denied. En Banc America,
UNITED STATES Appellee,
Floyd BRYANT, (NMN) Appellant.
No. 71-1640. Appeals,
United Court of States Fourth Circuit. 9,
Argued Dec. 1971.
Decided Feb.