EEOC v. ASTRA U.S.A., Inc.

October 11, 1996 UNITED STATES COURT OF APPEALS
October 11, 1996 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 96-1751

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, Appellee,

v.

ASTRA USA, INC.,
Defendant, Appellant.

ERRATA SHEET
ERRATA SHEET

The opinion of this court issued on September 6, 1996, is
corrected as follows:

On page 11, line 10 change "(1979)" to "(1980)"

On page 17, line 12 change "(1978)" to "(1979)"

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 96-1751

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, Appellee,

v.

ASTRA USA, INC.,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Selya and Cyr, Circuit Judges,

and Tauro,* District Judge.

Richard L. Alfred, with whom John A.D. Gilmore, Joshua M.

Davis, and Hill & Barlow were on brief, for appellant.

Arthur G. Telegen, William B. Koffel, Foley, Hoag & Elliot

LLP, John H. Mason, Robert B. Gordon, Ropes & Gray, John F.

Welsh, Testa, Hurwitz & Thibeault LLP, Wilfred J. Benoit, and

Goodwin, Procter & Hoar LLP on brief for Boston Area Management

Attorneys Group, amicus curiae.
Paul D. Ramshaw, with whom C. Gregory Stewart, General

Counsel, Gwendolyn Young Reams, Associate General Counsel,

Vincent J. Blackwood, Assistant General Counsel, and Gail S.

Coleman were on brief, for appellee.

Michael Roitman, Shapiro Grace Haber & Urmy, Richard T.

Seymour, Teresa A. Ferrante, Helen Norton, and Ozell Hudson, Jr.

on brief for Lawyers Committee for Civil Rights Under Law,
Women's Legal Defense Fund, Massachusetts Black Lawyers
Association, and Lawyers Committee for Civil Rights Under Law of
the Boston Bar Association, amici curiae.

September 6, 1996

*Of the District of Massachusetts, sitting by designation.

SELYA, Circuit Judge. In this case of first
SELYA, Circuit Judge.

impression, defendant-appellant Astra USA, Inc. ("Astra" or "the

company") challenges a preliminary injunction restraining it from

entering into or enforcing settlement agreements containing

provisions that prohibit settling employees both from filing

charges of sexual harassment with the Equal Employment

Opportunity Commission ("EEOC" or "the Commission") and from

assisting the Commission in its investigation of any such

charges.1 For the reasons that follow, we affirm the preliminary

injunction in part and vacate it in part.

I. BACKGROUND
I. BACKGROUND

The EEOC is currently investigating three sexual

harassment charges filed against Astra. At least two of these

charges allege class-wide improprieties. The controversy before

us arose when the Commission found its investigation hampered by

certain settlement agreements entered into between Astra and

sundry employees who theretofore had pursued sexual harassment

claims. The problem first surfaced when an EEOC investigator,

Brenda Choresi Carter, spoke with a former Astra employee on May

7, 1996. According to Carter, the employee stated that she

possessed relevant information but was unable to disclose it "due

to a confidential settlement agreement that she had entered into

1The settlement agreements involve, and the district court's
injunction covers, both employees and former employees of Astra.
It is unnecessary to distinguish between these two groups for
purposes of this appeal. Consequently, we use the collective
noun "employees" to encompass both past and present
employees.

3

with Astra." Although this conversation supplies the EEOC's most

concrete proof that Astra's settlement agreements are hindering

its probe, the Commission also points to other evidence hinting

that the agreements may be stifling potential sources. One

employee who expressed reluctance about speaking with an EEOC

investigator refused to say whether she had entered into a

settlement agreement. Then, too, when the EEOC contacted ninety

employees and requested information, only twenty-six replied.

Although the Commission finds this widespread unresponsiveness to

be sinister, its cause is unproven.

This is the extent of the hard evidence as to the

impact of the settlement agreements on the EEOC's investigation.

In all events, the Commission has not unleashed its subpoena

power, see 42 U.S.C. 2000e-9 (1994) (incorporating by reference

29 U.S.C. 161), to compel any recalcitrant employee to furnish

relevant information.

The record reveals that Astra has entered into at least

eleven settlement agreements the exact number remains uncertain

with employees who claimed to have been subjected to, or to

have witnessed, sexual harassment. The details of these

agreements vary, but they all contain versions of four provisions

that are relevant to the disposition of this appeal. First, the

settling employee agrees not to file a charge with the EEOC.

Second, the settling employee agrees not to assist others who

4

file charges with the EEOC.2 Third, the settling employee

releases all employment-related claims against Astra and those in

privity with Astra (including Astra's management). Fourth, the

settling employee assents to a confidentiality regime under which

she is barred from discussing the incident(s) that gave rise to

her claim and from disclosing the terms of her settlement

agreement.

After the EEOC learned of Astra's artful draftsmanship,

it asked the company to rescind those portions of the settlement

agreements that prohibited individuals from filing charges with

the Commission ("non-filing provisions") and from aiding the

Commission's investigations ("non-assistance provisions"). Astra

defended both the non-filing and the non-assistance provisions

2While the precise phraseology of the non-filing and non-
assistance covenants varies from pact to pact, the import is the
same. By way of illustration, a representative agreement
contains a covenant binding the settling employee "not to file or
to assist in any way anyone else who files any claim, complaint,
or charge nor institute any lawsuit against ASTRA, its officers,
directors, agents, or employees arising out of her employment or
termination of employment with ASTRA, including, but not limited
to, any claim, complaint, charge, or lawsuit under the Civil
Rights Act of 1991, Title VII of the Civil Rights Act of 1964,
Americans with Disabilities Act, the Massachusetts Fair
Employment Practice Act, any other federal or state law or
statute, or any claim which could be alleged under the common
law." In another iteration, some settlement agreements confirm
that the settling party will not "voluntarily provide any
assistance" to persons asserting claims against Astra.
While the non-assistance provisions have two facets they
purport to bar assistance to both the EEOC and fellow employees
the Commission so far has challenged only that facet of the non-
assistance provisions which purports to prevent settling
employees from communicating with the Commission. Since the EEOC
has not yet objected to that part of the non-assistance
provisions which precludes a settling employee from aiding
another employee in preferring a claim against Astra, we take no
view of that aspect of the matter.

5

but added that it "do[es] not interpret any settlement agreement

as preventing any . . . employee from communicating with the EEOC

concerning any of its investigations." Astra's concession on the

right of settling employees to communicate with the Commission

remains somewhat tenebrous: at oral argument, the company's

counsel suggested that employees must await a subpoena before

sharing information with the EEOC. At any rate, Astra

steadfastly maintains that employees who have signed settlement

agreements may not volunteer any information to the Commission

that is beyond the scope of an ongoing investigation.

Dissatisfied with Astra's response, the EEOC filed suit

seeking injunctive relief pursuant to section 706(f)(2) of Title

VII, 42 U.S.C. 2000e-5(f)(2). Without convening an evidentiary

hearing, the district court granted the request for a preliminary

injunction and enjoined Astra for the time being "from entering

into or enforcing provisions of any Settlement Agreements which

prohibit current or former employees from filing charges with the

EEOC and/or assisting the Commission in its investigation of any

charges." EEOC v. Astra U.S.A., Inc., 929 F. Supp. 512, 521 (D.

Mass. 1996). The court also directed Astra to "provide a copy of

this injunction to all current and former employees who have

signed Settlement Agreements to assure them of notification of

their rights set forth herein." Id. Astra appealed and

requested interim relief. We stayed the operation of the

injunction (subject to certain conditions not relevant here) and

expedited appellate proceedings.

6

II. ANALYSIS
II. ANALYSIS

We first delineate certain legal standards (a task

that, in this instance, requires us to resolve a threshold

question). We then evaluate the injunction as it affects the

non-assistance and non-filing provisions, respectively.

A. The Applicable Preliminary Injunction Standard.
A. The Applicable Preliminary Injunction Standard.

In the typical case, a party seeking preliminary

injunctive relief must prove: (1) a substantial likelihood of

success on the merits; (2) a significant risk of irreparable harm

if the injunction is withheld; (3) a favorable balance of

hardships; and (4) a fit (or, at least, a lack of friction)

between the injunction and the public interest. See Narragansett

Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991). Here,

however, the EEOC asserts that Congress, by enacting section

706(f)(2) of Title VII, specifically authorized the agency to

seek injunctive relief in the public interest.3 Based on this

circumstance, the EEOC argues that it need not satisfy the

traditional test for preliminary injunctive relief but, instead,

must only meet the built-in criterion that section 706(f)(2)

3The statute provides in material part:

Whenever a charge is filed with the
Commission and the Commission concludes on
the basis of a preliminary investigation that
prompt judicial action is necessary to carry
out the purposes of this Act, the Commission
. . . may bring an action for appropriate
temporary or preliminary relief pending final
disposition of such charge.

42 U.S.C. 2000e-5(f)(2).

7

itself establishes. On this approach an injunction is

appropriate as long as the Commission, after conducting a

preliminary investigation of a pending charge of discrimination,

(1) determines that prompt judicial intervention is essential to

carry out the purposes of Title VII, and (2) makes out a prima

facie case that the defendant has committed (or is likely to

commit) serious violations of Title VII which, if not enjoined,

will frustrate the Act's purposes. In practice, the difference

between the two approaches may be more apparent than real. The

EEOC, however, sees two key distinctions: under its approach the

public interest prong becomes a foregone conclusion (for the

Commission is itself the standard-bearer for the public

interest), and, in addition, a somewhat lessened showing of

irreparable harm may be adequate to justify preliminary

injunctive relief.

The circuits are in some disarray regarding whether the

EEOC must meet the traditional four-part test for injunctive

relief. See, e.g., Baker v. Buckeye Cellulose Corp., 856 F.2d

167, 169 (11th Cir. 1988) (holding that an allegation of a Title

VII violation establishes a rebuttable presumption of irreparable

injury); EEOC v. Pacific Press Pub. Ass'n, 535 F.2d 1182, 1187

(9th Cir. 1976) (suggesting that "the usual requirement of

irreparable injury is relaxed" when the EEOC seeks injunctive

relief pendente lite); cf. EEOC v. Cosmair, Inc., 821 F.2d 1085,

1090 (5th Cir. 1986) (holding, in an ADEA case, that "[w]hen an

injunction is expressly authorized by statute and the statutory

8

conditions are satisfied, the movant need not establish specific

irreparable injury to obtain a preliminary injunction").

Amidst these subtly shaded solutions, the Sixth Circuit

struck a blow for clarity and flatly rejected the EEOC's

interpretation of section 706(f)(2). See EEOC v. Anchor Hocking

Corp., 666 F.2d 1037, 1040-41 (6th Cir. 1981). We think that

this is the right result. There is nothing in the language of

section 706(f)(2) that can fairly be read to limit a district

court's discretion in issuing preliminary injunctions. In

authorizing the EEOC to "bring an action for appropriate

temporary or preliminary relief," the statute does not purport to

wrest the final decision on whether relief is warranted from the

courts. See id. at 1041 & n.4 (comparing 706(f)(2) with other

federal statutes which by their language restrict the district

courts' discretion in issuing injunctions). Moreover, this court

has consistently emphasized the importance of a showing of

irreparable harm in the calculus of injunctive relief. See,

e.g., Gately v. Commonwealth of Mass., 2 F.3d 1221, 1232 (1st

Cir. 1993) (stating that "a federal court cannot dispense with

the irreparable harm requirement in affording injunctive

relief"), cert. denied, 114 S. Ct. 1832 (1994). In our view this

principle, which is predicated on the teaching that "[t]he basis

of injunctive relief in the federal courts has always been

irreparable harm and inadequacy of legal remedies," Beacon

Theatres, Inc. v. Westover, 359 U.S. 500, 506-07 (1959), is of

paramount importance and should not lightly be set aside.

9

Because we see no evidence in this instance that Congress, in

drafting section 706(f)(2), intended the courts to depart from

this rule, we hold that the EEOC like any other suitor must

meet the familiar four-part test for preliminary injunctive

relief.

We review the district court's grant of a preliminary

injunction for mistake of law or abuse of discretion. See

Narragansett Indian Tribe, 934 F.2d at 5; Independent Oil & Chem.

Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d

927, 929 (1st Cir. 1988). A party appealing from either the

grant or the denial of a preliminary injunction bears the

considerable burden of demonstrating that the district court

flouted this standard. See Gately, 2 F.3d at 1225.

B. Non-Assistance Agreements.
B. Non-Assistance Agreements.

With these principles in mind, we turn to those

provisions of the settlement agreements that prohibit employees

from aiding the EEOC in its investigation of charges.4 Astra

objects to the portion of the injunction that bans it from either

introducing or enforcing these provisions on two grounds. First,

it claims that the injunction issued without a satisfactory

showing of irreparable harm. Second, it claims that the

injunction is unnecessary because it now interprets the

settlement agreements to permit various types of communication

4Although the precise terms of the settlement agreements
vary, see supra note 2 & accompanying text, we think that many

settling parties would interpret these provisions, however they
may be couched, as barring them from volunteering information to
the EEOC or cooperating with its investigators.

10

with the EEOC. Both claims lack force.

In determining whether the district court was justified

in finding a significant risk of irreparable harm, we first note

that when the likelihood of success on the merits is great, a

movant can show somewhat less in the way of irreparable harm and

still garner preliminary injunctive relief. See Michigan

Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945

F.2d 150, 153 (6th Cir. 1991) ("Simply stated, more of one

excuses less of the other."); Maram v. Univesidad Interamericana

de P.R., Inc., 722 F.2d 953, 958 (1st Cir. 1983) (stating that

"these interests must be weighed inter sese"); see also John

Leubsdorf, The Standard for Preliminary Injunctions, 91 Harv. L.

Rev. 525, passim (1978). Thus, we start this phase of our

inquiry by addressing whether a broad non-assistance agreement is

void as against public policy. If it is overwhelmingly clear

that the provisions prohibiting settlors from assisting in EEOC

investigations offend public policy, a lesser showing that those

provisions are causing irreparable harm will suffice to support a

preliminary injunction barring their enforcement.

We build on bedrock. "[A] promise is unenforceable if

the interest in its enforcement is outweighed in the

circumstances by a public policy harmed by enforcement of the

agreement." Town of Newton v. Rumery, 480 U.S. 386, 392 (1987).

In performing that balancing here, we must weigh the impact of

settlement provisions that effectively bar cooperation with the

EEOC on the enforcement of Title VII against the impact that

11

outlawing such provisions would have on private dispute

resolution.

Congress entrusted the Commission with significant

enforcement responsibilities in respect to Title VII. See 42

U.S.C. 2000e-5(a). To fulfill the core purposes of the

statutory scheme, "it is crucial that the Commission's ability to

investigate charges of systemic discrimination not be impaired."

EEOC v. Shell Oil Co., 466 U.S. 54, 69 (1984). Clearly, if

victims of or witnesses to sexual harassment are unable to

approach the EEOC or even to answer its questions, the

investigatory powers that Congress conferred would be sharply

curtailed and the efficacy of investigations would be severely

hampered.

What is more, the EEOC acts not only on behalf of

private parties but also "to vindicate the public interest in

preventing employment discrimination." General Tel. Co. v. EEOC,

446 U.S. 318, 326 (1980). In many cases of widespread

discrimination, victims suffer in silence. In such instances, a

sprinkling of settlement agreements that contain stipulations

prohibiting cooperation with the EEOC could effectively thwart an

agency investigation. Thus, any agreement that materially

interferes with communication between an employee and the

Commission sows the seeds of harm to the public interest. See

Cosmair, 821 F.2d at 1090 (stating that "an employer and an

employee cannot agree to deny to the EEOC the information it

12

needs to advance this public interest").5

To complete the balance we must next address what

impact the injunction against non-assistance covenants might have

on private dispute resolution. We do not doubt that public

policy strongly favors encouraging voluntary settlement of

employment discrimination claims. See, e.g., Carson v. American

Brands, Inc., 450 U.S. 79, 88 n.14 (1981). Yet we fail to see

that this portion of the injunction creates a substantial

disincentive to settlement, and Astra makes no plausible argument

to the contrary. Simply put, this monition does nothing at all

to promote further litigation between Astra and the settling

employee or to disturb the finality of the negotiated settlement.

Thus, weighing the significant public interest in encouraging

communication with the EEOC against the minimal adverse impact

that opening the channels of communication would have on

settlement, we agree wholeheartedly with the lower court that

5Cosmair arose under the Age Discrimination in Employment

Act (ADEA), 29 U.S.C. 621-634 (1994), and Astra asserts that
it is inapposite here because unsupervised settlement agreements
that waive employees' claims are more suspect under the ADEA than
under Title VII. This assertion is based on a fundamental
misunderstanding. The right to assist the EEOC is not a damages-
driven right. Indeed, the court below specifically held that
settling employees had waived the right to recover damages in
either their own lawsuits or in lawsuits brought by the EEOC on
their behalf. See Astra, 929 F. Supp. at 521. In contrast to

the individual right to recover damages, however, an employee's
right to communicate with the EEOC must be protected not to
safeguard the settling employee's entitlement to recompense but
instead to safeguard the public interest. Hence, it is not a
right that an employer can purchase from an employee, nor is it a
right that an employee can sell to her employer. Thus, a waiver
of the right to assist the EEOC offends public policy under both
the ADEA and Title VII.

13

non-assistance covenants which prohibit communication with the

EEOC are void as against public policy.

We now return to Astra's principal assertion: that,

because the EEOC could obtain the information it seeks through

the use of its subpoena power, there is no evidence of

irreparable harm and, hence, no basis for fashioning the disputed

segment of the injunction. This boils down to a contention that

employees who have signed settlement agreements should speak only

when spoken to. We reject such a repressive construct. It would

be most peculiar to insist that the EEOC resort to its subpoena

power when public policy so clearly favors the free flow of

information between victims of harassment and the agency

entrusted with righting the wrongs inflicted upon them. Such a

protocol would not only stultify investigations but also

significantly increase the time and expense of a probe.

In any event, the district court specifically found a

likelihood of irreparable harm "because the Commission's ability

to investigate charges of discrimination and to enforce anti-

discrimination laws has been and continues to be impeded by the

chilling effect caused by the offending provisions of the

Agreements." Astra, 929 F. Supp. at 520. Given Carter's

affidavit and the likely effect of the wording that Astra

inserted into the settlement agreements, see supra note 2, we

think that this finding is supportable. Thus, there is a

sufficient risk of irremediable harm to warrant the issuance of a

preliminary injunction addressed to the non-assistance

14

provisions.

Astra further argues that an injunction is

inappropriate because it does not interpret the settlement

agreements as barring communication with the EEOC. This argument

is doubly flawed. In the first place, Astra admits only that

settlors may answer questions when subpoenaed by the EEOC, and

that is much too narrow a concession. In the second place, Astra

cannot defeat an injunction now by indulging in a revisionist

interpretation of the settlement agreements that would permit

full and open communication with the EEOC. "It is the duty of

the courts to beware of efforts to defeat injunctive relief by

protestations of repentance and reform, especially when

abandonment seems timed to anticipate suit . . . ." United

States v. Oregon State Medical Soc'y, 343 U.S. 326, 333 (1952);

accord Chang v. Univ. of R.I., 606 F. Supp. 1161, 1275 (D.R.I.

1985). Here, Astra drafted aggressive settlement agreements

under which employees pledged "not to assist in any way" in

proceedings against it. The district court supportably found

that these agreements had in fact chilled communications between

the settling employees and the EEOC. Astra's attempts to

reinterpret the operative provisions of its agreements when under

siege come too late to prevent the issuance of an injunction.

We need not add hues to the rainbow. The district

court neither misperceived the law nor misused its discretion in

enjoining the utilization of settlement provisions that prohibit

employees from assisting the EEOC in investigating charges of

15

discrimination. Consequently, employees who have signed such

settlement agreements may respond to questions from EEOC

investigators and also may volunteer information concerning

sexual harassment at Astra to the EEOC.6

C. Non-Filing Agreements.
C. Non-Filing Agreements.

In addition to enjoining Astra from entering into or

enforcing the non-assistance provisions of the settlement

agreements, the district court also enjoined Astra from entering

into or enforcing those provisions that ban employees from filing

charges with the EEOC. Astra assigns error. It argues, inter

alia, that public policy favors the enforcement of such

covenants; that the EEOC will not suffer irreparable harm in the

absence of an injunction; and that the restraint exceeds the

bounds authorized under 42 U.S.C. 2000e-5(f)(2). Because we

agree that the EEOC has made no showing that it will suffer

irreparable harm in the absence of this portion of the

injunction, we decline to reach Astra's other claims.

Our analysis of this issue does not evolve from an

exploration of the relation between irreparable harm and

6Though the injunction does not specifically address the
confidentiality covenants to which the settlement agreements are
subject, the terms of the injunction forbid Astra from enforcing
any contractual provisions that impede settling employees from

assisting the EEOC in ongoing investigations. Thus, the
injunction effectively precludes enforcement of the
confidentiality covenants to block the divulgement of relevant
information (including divulgement of the entire contents of any
particular settlement agreement) to the Commission. We need not
probe this point more deeply, because Astra now interprets the
confidentiality language as inapplicable to communications
between settling employees and the EEOC relevant to an ongoing
investigation.

16

likelihood of success on the merits. That inquiry is most

utilitarian in instances in which the issue is whether the degree

of harm is sufficient to warrant injunctive relief. See, e.g.,

supra Part II(B). Here, however, there is no significant risk of

irreparable harm and that fact alone is dispositive. See

Gately, 2 F.3d at 1232.

This conclusion rests on the role that the filing of a

charge plays in the statutory scheme. The EEOC has no authority

to conduct an investigation based on hunch or suspicion, no

matter how plausible that hunch or suspicion may be. The reverse

is true: the Commission's power to investigate is dependent upon

the filing of a charge of discrimination. "[U]nlike other

federal agencies that possess plenary authority to demand to see

records relevant to matters within their jurisdiction, the EEOC

is entitled to access only to evidence `relevant to the charge

under investigation.'" Shell Oil, 466 U.S. at 64 (quoting

statute).

Once a charge is filed with the EEOC, the situation

changes dramatically. The allegations contained in the charge do

not narrowly circumscribe the Commission's investigation.

Rather, the charge serves as "a jurisdictional springboard"

enabling the Commission "to investigate whether the employer is

engaged in any discriminatory practices." EEOC v. Huttig Sash &

Door Co., 511 F.2d 453, 455 (5th Cir. 1975). So viewed, the

charge is capable of supporting an EEOC investigation into both

the discrimination described in the charge itself and into the

17

surrounding circumstances (including a full probing of any

evidence of discriminatory practices unearthed during the course

of the initial investigation). See EEOC v. General Elec. Co.,

532 F.2d 359, 366 (4th Cir. 1976).

Given this set of rules, the EEOC's claim of

irreparable harm cannot withstand scrutiny. The EEOC is already

investigating three charges against Astra, two of which allege

class-wide sexual harassment in the workplace. These charges

provide the EEOC with jurisdiction to conduct a thorough

investigation into incidents of sexual harassment, invidious

practices, and other prohibited conduct that may have occurred at

Astra over time. Additionally, the portion of the injunction

that prevents the enforcement of the settlement agreements' non-

assistance provisions a portion of the injunction that we

uphold, see supra Part II(B) ensures that employees will be

able to cooperate freely with the EEOC's investigators.

The short of it is that, once an injunction issues

prohibiting Astra from enforcing the non-assistance covenants,

this case offers no prospect of irreparable harm to the EEOC.

Thus, the judicial restraint that the district court imposed

against enforcement of the non-filing covenants violates the

tenet that "injunctive relief should be no more burdensome to the

defendant than necessary to provide complete relief to the

plaintiffs." Califano v. Yamasaki, 442 U.S. 682, 702 (1979).

This case is an especially attractive candidate for

application of the Yamasaki doctrine. The difficult, highly

18

ramified questions that surround the validity of non-filing

covenants counsel persuasively against reaching out past what is

required during the preliminary injunction phase. Consequently,

we believe it was inadvisable and legally incorrect for the

district court, on the sparse evidence contained in this record,

to attempt to confront the thorny question of whether agreements

not to file charges with the EEOC are void as against public

policy. Courts should take care not to yearn for the blossom

when only the bud is ready.7

In an effort to coax a different result, the EEOC

bemoans the increased burden that it would face if it had to

compel potential witnesses' cooperation by subpoena. As applied

to this portion of the preliminary injunction, the Commission's

asseveration is a non sequitur. As long as enforcement of the

non-assistance covenants is enjoined, the EEOC's current

investigations will not be impeded even if settling parties

cannot file additional charges. And as we have already noted,

those investigations are sufficiently broad in scope to permit

7We take no view today of the validity vel non of non-filing

covenants. The question is close and the answer is not obvious
to us. On one hand, a charge is sometimes a prerequisite to
action in the public interest by the EEOC; that consideration
argues for abrogating such covenants. On the other hand, if non-
filing agreements are unenforceable, private settlement of
harassment claims will be hindered significantly and employers
seeking finality may well insist that employees file charges with
the EEOC as a precondition to any settlement; this consideration
argues for upholding such covenants. All in all, we conclude
that trying to resolve the tension between these laudable but
competing goals in a case in which no discernible need for the
requested relief exists and no fully developed factual record is
available courts potential mischief.

19

the Commission to get to the bottom of the unsavory (but, as yet,

unproven) allegations that are swirling around the company.

To be sure, we are cognizant of the possibility that

additional charges filed with the EEOC perhaps could serve as a

basis to expand the temporal scope of the ongoing investigations.

Thus, the non-filing covenants, if left undisturbed,

theoretically could limit the claims of some class members

against Astra, and this limitation might in turn provide a basis

for a finding of irreparable harm. But that is sheer speculation

on this exiguous record. Absent any hard evidence that anyone

who signed a settlement agreement with Astra now seeks to press

charges with the EEOC which, if filed, would expand the

investigations' scope, the disputed portion of the injunction is

unwarranted. If the EEOC's investigations subsequently reveal

that such a situation actually exists, that is the time to renew

the quest for an injunction against enforcement of the non-filing

provisions contained in Astra's settlement agreements.

III. CONCLUSION
III. CONCLUSION

We need go no further. The EEOC will receive full

relief from that portion of the district court's injunction which

restrains Astra from entering into or enforcing the non-

assistance provisions of its settlement agreements. We therefore

affirm that portion of the injunction, vacate the portion

enjoining Astra from entering into or enforcing non-filing

covenants in connection with those agreements, and remand for the

entry of a revised decree consistent herewith.

20

Affirmed in part, vacated in part, and remanded. The
Affirmed in part, vacated in part, and remanded. The

stay previously granted is dissolved. Each party shall bear its
stay previously granted is dissolved. Each party shall bear its

own costs.
own costs.

21