Dr. N. Jay ROGERS et al., Petitioners-Appellees, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Respondent-Appellant, 454 F.2d 234

GOLDBERG, Circuit Judge: This Equal Employment Opportunity case comes to us in a preliminary and undefinitive posture. We are asked to limit at the threshold the investigative scope of the Equal Employment Opportunity Commission on the ground that the Commission seeks evidence of a discriminatory employment practice which is not proscribed by Title VII of the Civil Rights Act of 1964. Judge Godbold, for reasons best expressed in his concurring opinion, permits the discovery. Though my justiciable

interpretation of the acts charged differs from that of my Brother Godbold, I also sanction the discovery, because at this juncture I cannot be certain that the acts charged are not within the Act’s proscriptions. On April 11,1969, Mrs. Josephine Chavez filed with the respondent EEOC, pursuant to

Section 706(

a) of Title VII, 42 U.S.C.A. § 2000e-5(a), a verified charge o.f employment discrimination against petitioners S. J. and N. Jay Rogers, who are optometrists doing business as “Texas State Optical.” The charge stated in full: “The above company has discriminated against me because of my national origin Spanish surnamed American by: a. Terminated me from my job without a reason. I was the only Spanish surnamed Americán employed with seven Caucasian females who abused me.

The manager told me my work was all-right [sic] but he had to let me go because of friction. b. segregating the patients.” In May of 1969 the Commission commenced investigation of the charge, serving a copy of it on petitioners. Frustrated by unsuccessful efforts to secure voluntary production of materials considered relevant to its investigation, the Commission invoked its statutory authority and issued upon the petitioners a Demand for Access to Evidence. In addition to information concerning Mrs.

Chavez and other of the petitioners’ employees, the Demand sought production of data pertaining to or contained in the patient applications which petitioners maintain in the course of their business. Within the twenty-day statutory period; petitioners filed in a federal district court a petition to set aside or modify the Demand, and the EEOC timely answered and cross-petitioned for enforcement. The district court granted partial enforcement of the Demand, denying the Commission’s request for access to patient applications. Rogers v. EEOC, E. D.Tex.1970, 316 F.Supp. 422.

The EEOC appeals the partial enforcement order and contends that the district court should have granted the Commission access to these applications. The majority of this court is in agreement that the Demand for Access to Evidence against petitioners should be enforced in toto. Before considering the district court’s justifications for refusing enforcement of the Demand, I find it necessary to consider the

interpretation which should be accorded Mrs. Chavez’s complaint. Neither the district court nor the EEOC interpreted the complainant’s charge of “segregating the patients” as alleging that “Mrs. Chavez is required or permitted to attend only to patients of a certain ethnic origin and not to others.” Rogers v. EEOC, supra, 316 F.Supp. at 425. Such an

interpretation, which Judge Godbold endorses, might very well be reasonable, but it is certainly neither compulsory nor compelling. This case was tried and the trial court’s conclusion reached solely on the

interpretation of the charge that petitioners discriminate among their clients on the basis of the patient’s national origin. This is both a reasonable and a practical

interpretation, and I prefer to come to grips with the fundamentals of this case as viewed by the claimant, the learned and distinguished trial judge, the Equal Employment Opportunity Commission, the briefs on appeal, and Judge Roney. Accordingly, for purposes of the merits of this appeal, I will treat the latter portion of Mrs. Chavez’s charge, as the district court did, to mean only that petitioners afford their patients different treatment depending on their ethnic origins. I. Unlawful Employment Practice On the basis of the above

interpretation of the second portion of Mrs. Chavez’s charge, the court below denied the Commission’s Demand for access to the petitioners’ patient applications because the EEOC had failed to show that Mrs. Chavez was a person “aggrieved” by an unlawful employment practice within the meaning of

Section 703(a), 42 U.S.C.A. § 2000e-2(a). In the words of the trial court: “ . . . Accepting arguendo the Commission’s contention that if Petitioners in fact ‘segregated the patients’ then such a practice might be so of-sensive to Mrs. Chavez’s sensibilities as to make her uncomfortable in her job, there still is no showing that she is ‘aggrieved’ in the sense contemplated by § 706(a), i. e., by the employer’s pursuit of an ‘unlawful employment practice’ within § 703.” Rogers v. EEOC, supra, 316 F.Supp. at 425. I disagree fundamentally with this position.

While the district court may have viewed lightly the connection between the petitioners' alleged discrimination against its patients and Mrs. Chavez’s sensibilities, I think that the relationship between an employee and his working environment is of such significance as to be entitled to statutory protection.

Section 703(a) (1) of Title VII, 42 U.S.C.A. § 2000e-2(a) (1) provides that it shall be an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” This language evinces a Congressional intention to define discrimination in the broadest possible terms.

Congress chose neither to enumerate specific discriminatory practices, nor to elucidate in extenso the parameter of such nefarious activities. Rather, it pursued the path of wisdom by being uneonstric-tive, knowing that constant change is the order of our day and that the seemingly reasonable practices of the present can easily become the injustices of the morrow. Time was when employment discrimination tended to be viewed as a series of isolated and distinguishable events, manifesting itself, for example, in an employer’s practices of hiring, firing, and promoting.

But today employment discrimination is a far more complex and pervasive phenomenon, as the nuances and subtleties of discriminatory employment practices are no longer confined to bread and butter issues. As wages and hours of employment take subordinate roles in management-labor relationships, the modem employee makes ever-increasing demands in the nature of intangible fringe benefits. Recognizing the importance of these benefits, we should neither ignore their need for protection, nor blind ourselves to their potential misuse.

We must be acutely conscious of the fact that Title VII of the Civil Rights Act of 1964 should be accorded a liberal

interpretation in order to effectuate the purpose of Congress to eliminate the inconvenience, unfairness, and humiliation of ethnic discrimination. Parham v. Southwestern Bell Telephone Co., 8 Cir. 1970, 433 F.2d 421; Green v. McDonnell-Douglas Corp., E.D.Mo.1970, 318 F.Supp. 846; United States v. Medical Soc’y of South Carolina, D.S.C.1969, 298 F.Supp. 145. Furthermore, I regard this broad-gauged innovation legislation as a charter of principles which are to be elucidated and explicated by experience, time, and expertise.

Therefore, it is my belief that employees’ psychological as well as economic fringes are statutorily entitled to protection from employer abuse, and that the phrase “terms, conditions, or privileges of employment” in

Section 703 is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination. I do not wish to be interpreted as holding that an employer’s mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee falls within the proscription of

Section 703. But by the same token I am simply not willing to hold that a discriminatory atmosphere could under no set of circumstances ever constitute an unlawful employment practice. One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers, and I think

Section 703 of Title VII was aimed at the eradication of such noxious practices. Petitioners urge, nevertheless, that the second portion of Mrs. Chavez’s charge could not relate to an unlawful employment practice because it alleges discrimination directed toward petitioners’ patients and not toward any employee. Essentially petitioners’ contention is that their discriminatory treatment or classification of patients is not a practice directed toward any employee and that because of such discrimination Mrs. Chavez cannot complain that she is treated any differently than any other employee. However, petitioners’ eisegesis is not consistent with the

interpretation recently accorded Title VII by the Supreme Court. In Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, the Court held that the absence of discriminatory intent by an employer does not redeem an otherwise unlawful employment practice, and that the thrust of Title VII’s proscriptions is aimed at the consequences or effects of an employment practice and not at the employer’s motivation. Hence, petitioners’ failure to direct intentionally any discriminatory treatment toward Mrs. Chavez is simply not material to the finding of an unlawful employment prac-. tice.

Moreover, I believe that petitioners’ argument does not countenance the distinct possibility that an employer’s patient discrimination may constitute a subtle scheme designed to create a working environment imbued with discrimination and directed ultimately at minority group employees. As patently discriminatory practices become outlawed, those employers bent on pursuing a general policy declared illegal by Congressional mandate will undoubtedly devise more sophisticated methods to perpetuate discrimination among employees.

The petitioners’ alleged patient discrimination may very well be just such a sophisticated method and, if so, then Mrs. Chavez, as the primary object of the discriminatory treatment, suffers directly the consequences of such a practice and is entitled to protection in accordance with the provisions of Title VII. II. Sufficiency of the Charge Even though I would hold that a working environment heavily charged with discrimination may constitute an unlawful practice, I must nevertheless resolve whether or not Mrs.

Chavez’s charge of “segregating the patients” is sufficient to trigger the Commission’s investigatory functions. I am met at the outset with scant legislative guidance. The relevant portion of

Section 706(

a) of Title VII, 42 U.S.C.A. § 2000e-5(

a) provides: “Whenever it is charged in writing under oath by a person claiming to be aggrieved, . . . (and such charge agts forth the facts upon which it is based) that an employer . . . has engaged in an unlawful employment practice, the Commission shall . . . make an investigation of such charge. In relation to substantive matters,

Section 706(

a) seemingly requires that the charge (1) set forth the facts upon which it is based, and (2) allege an unlawful employment practice. Concerning the proper criterion to be applied in determining whether or not a charge is factually sufficient and comports with the requirements of the parenthetical clause of

Section 706(a), I believe that the Fourth Circuit has adopted a standard which is both consistent with the underlying policy of Title VII and promotive of the purposes and objectives embodied in its enforcement provisions. In Graniteville Co. v. EEOC, 4 Cir., 1971, 438 F.2d 32, 38, that court stated: “The purpose of the charge under

section 706 is only to initiate the EEOC investigation, not to state sufficient facts to make out a prima facie case. The parenthetical clause in

section 706 (

a) only requires a sufficient allegation to give the EEOC notice of what it is to investigate and put the respondent on notice of the practice or violation with which it is charged. “The scope of prohibited practices under Title VII is broad. The

section 706(

a) requirement that charges state the facts on which they are based must accordingly be given a flexible

interpretation as applied to allegations of different unlawful employment practices. If a charging party is alleging a specific incident as a violation of Title VII, such as denial of a requested promotion or the termination of his employment, it may be appropriate to require some degree of specificity of the charge’s allegations.

However, sophisticated general policies and practices of discrimination are not susceptible to such precise delineation by a layman who is in no position to carry out a full-fledged investigation himself . . . . ” Applying this standard to the instant case, I believe that the complainant’s charge of “segregating the patients” constitutes a sufficient factual allegation to inform the EEOC of what it is to investigate and to notify the employer of the practice with which it is charged. I am not unmindful of the fact that Mrs. Chavez might have detailed the specific act or acts of segregation of which she complains.

However, the involution and obscurity of the possible unlawful employment practice in this case demand that a flexible

interpretation be accorded to this requirement and that a court accept as sufficient a generalized factual allegation which in connection with an elemental or common unfair employment practice might otherwise be rejected as imprecise. Turning to the sufficiency of the charge in relation to the second requirement, that of an allegation of an unlawful employment practice, I note that a problem exists because of the indefiniteness of Mrs. Chavez’s charge.

Assuming that the underlying facts show that petitioners are in some manner segregating their patients, then the particular act or acts of segregation may or may not constitute an unlawful employment practice. However, I do not view certainty of violation as a condition precedent to EEOC investigation. A charging party’s failure to allege facts which, if true, would conclusively show a violation of Title VII should not be fatal to the effectiveness of the charge.

Rather, I think that a charge is sufficient to initiate EEOC proceedings if its factual allegations could reasonably encompass, upon a full investigation, an unlawful employment practice. In the instant case the petitioners’ patient segregation could be so employee demeaning as to constitute an invidious condition of employment, and the Commission should have the right to investigate and employ its expertise in determining whether or not the facts in the particular enterprise give rise to an unlawful employment practice.

Thus, the possibility that petitioners’ segregation of its patients could encompass an unlawful employment practice justifies an EEOC investigation. I believe that this conclusion is consistent with the general interpretative treatment that has been given to the enforcement provisions of Title VII by the federal judiciary. In those cases in which a liberal construction has been given to various procedural provisions of Title VII’s enforcement process, the courts have founded their liberality on a number of practical considerations.

First, courts have recognized that these enforcement provisions were fabricated as lay-initiated proceedings, intended to be utilized by the most unlettered and unsophisticated employees. Sanchez v. Standard Brands, Inc., 5 Cir. 1970, 431 F.2d 455; King v. Georgia Power Co., N.D.Ga.1968, 295 F.Supp. 943. Furthermore, federal decisions have noted that complainants are often unaware of “the full panoply of discrimination which [they] may have suffered” and frequently are “ignorant of or unable to thoroughly describe the discriminatory practices to which they are subjected.” King v.

Georgia Power Co., supra,, 295 F.Supp. at 947. See Sanchez v. Standard Brands, Inc., supra, 431 F.2d at 466. This is particularly true where the discrimination is embodied in a highly complex and abstruse practice. See Graniteville Co. v. EEOC, supra. Finally, it has been recognized that a charge of discrimination initiates only an administrative fact-finding procedure in the context of a non-adversary investigation in which the Commission simply attempts to determine whether reasonable cause exists to believe that the charge is true. General Employment Enterprises, Inc. v.

EEOC, 7 Cir. 1971, 440 F.2d 783; Graniteville Co. v. EEOC, supra; Sanchez v. Standard Brands, Inc., supra. These considerations lead me to conclude that the Commission must be permitted to view a complainant’s charge in its broadest reasonable sense. Since the factual allegations of Mrs.

Chavez’s charge could reasonably encompass an unlawful employment practice, the Commission should be empowered to ascertain the factual contours of the alleged patient discrimination and to make its determination as to existence of “reasonable cause.” I emphasize that I do not conclude that patient discrimination is a per se violation of Title VII. Nor do I hold that the burden of demonstrating that patient segregation, if existent, is such a malefic condition of employment as to constitute a statutory interdiction is a gossamer one.

I simply conclude that the Commission possesses the statutory authority to investigate psychological fringes in an employment relationship and to come to a conclusion as to whether or not, in the particular case, such activities are within the curative cupola of the Act. Therefore, assuming that patient segregation be found to exist, I leave to another day a judicial evaluation of its effect on the employment conditions of the company’s employees. Based upon the foregoing discussion, it follows that the Commission should be granted access to information concerning the petitioners’ patient applications.

Therefore, the judgment of the district court is reversed and the cause is remanded for further proceedings. Reversed and remanded. . 42 U.S.C.A. §§ 2000e to 2000e-15 (1964). . 42 U.S.C.A. § 2000e-8(

a) provides: “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 covered by this sub-chapter and is relevant to the charge under investigation.” . 42 U.S.C.A. § 2000e-9(

c) provides in pertinent part : “Within twenty days after the service upon any person charged under

section 2000e-5 of this title of a demand by the Commission for the production of documentary evidence or for permission to examine or to copy evidence in conformity with the provisions of

section 2000e-8(

a) of this title, such person may file in the district court of the United States for the judicial district in which he resides, is found, or transacts business, and serve upon the Commission a petition for an order of such court modifying or setting aside such demand. . . . ” . The district court’s order modifying the Demand is a final, appealable order under'28 U.S.C.A. § 1291. Overnite Transportation Co. v. EEOC, 5 Cir. 1968, 397 F.2d 368, 369 n. 4; International Brotherhood of Electrical Workers, Local No. 5 v.

United States EEOC, 3 Cir. 1968, 398 E.2d 248, cert, denied, 1969, 393 U.S. 1021, 89 S.Ct. 628, 21 L.Ed.2d 565. See also General Employment Enterprises, Inc. v. EEOC, 7 Cir. 1971, 440 F.2d 783; Graniteville Co. v. EEOC, 4 Cir. 1971, 438 F.2d 32; Bowaters Southern Paper Corp. v. EEOC, 6 Cir. 1970, 428 F.2d 799, cert, denied, 1970, 400 U.S. 942, 91 S.Ct. 241, 27 L.Ed.2d 246.