The Self-critical Analysis Privilege in Employment Discrimination Cases
| Publication year | 1993 |
| Pages | 287 |
| Citation | Vol. 22 No. 2 Pg. 287 |
1993, February, Pg. 287. The Self-Critical Analysis Privilege in Employment Discrimination Cases
When an employee files a charge with the Equal Employment Opportunity Commission ("Commission"), the Commission is required by law to investigate the allegations contained in the charge. As part of its investigation, the Commission may request documents from the employer's affirmative action, employment or Equal Employment Opportunity ("EEO") departments. Such a request is usually generated when an employee informs the Commission that he or she has filed a complaint with the in-house EEO officer or its equivalent. At a time when many businesses are downsizing, and in light of the new Civil Rights Act(fn1) and the Americans With Disabilities Act,(fn2) employers can expect an increase in the number of charges pertaining to employment discrimination.
Whether compelled by law or acting on their own initiative, many businesses have examined their operations to identify areas where minorities and women have traditionally been excluded, in an effort to correct past practices. The issues addressed in this article are: (1) whether the self-critical analysis privilege can be used to shield from discovery subjective materials constituting the critical analysis of an employer's treatment of women and minorities, on request of the Commission or a private plaintiff, and (2) if the privilege is applicable to employment discrimination cases,(fn3) to what extent the privilege can be used to prevent discovery.
The self-critical analysis privilege was first recognized in Berdice v. Doctor's Hospital, Inc.(fn4) and has been recognized in a variety of actions where confidentiality is essential to the free flow of information.(fn5) The privilege was first announced in relation to employment in the case of Banks v. Lockheed-Georgia Co.(fn6) In response to discrimination suits, the employer/defendant in Banks had appointed a team of employees to study the company's problems in the area of equal employment opportunities and to determine the progress, if any, of the company's affirmative action compliance program. A formal report based on the findings was created pursuant to Executive Order 11246, Order No. 4 (as revised).(fn7) The plaintiffs sought to obtain this information pursuant to Federal Rules of Civil Procedure ("F.R.C.P.") Rule 34. The employer argued that the information sought by the plaintiffs was protected by F.R.C.P. Rule 26 (b)(3), in that it constituted information collected in preparation for trial.
According to the court, the crucial issue apart from the application of the F.R.C.P. is whether the plaintiffs
should have access to the candid reports of [the employer] when such reports have been made in an attempt to affirmatively strengthen the company's policy of compliance with Title 7 and Executive Order 11246.(fn8)
The court denied the plaintiffs' request for production of documents, pursuant to F.R.C.P. Rule 34.(fn9) The court stated that allowing the plaintiffs access to the written opinions and conclusions of the employer's own research team would (1) discourage companies from making investigations intended to improve equal employment opportunities and (2) discourage frank self-criticism and evaluation in the development of affirmative action programs.(fn10) In short, the Banks court felt that such a measure would not improve compliance with the law.
Although the court ruled in favor of the employer, it stopped short of granting the employer an absolute privilege. The court ordered the employer to provide the plaintiffs with any factual or statistical information that was available to members of the employer's research team at the time they conducted their study.(fn11)
The privilege outlined in Banks was qualified...
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