Policy Guidance: Discussion of the legal standards governing the granting of preliminary relief under the ADEA and Title VII

N-915.057

August 13, 1990

1. SUBJECT: Policy Guidance: Discussion of the legal standards governing the granting of preliminary relief under the Age Discrimination in Employment Act (ADEA) and Title VII.

2. PURPOSE: This issuance provides an overview of the legal standards applied by the courts in deciding whether preliminary relief is appropriate under the ADEA and Title VII and is intended to provide guidance on assessing charges to determine whether preliminary relief should be sought.

3. EFFECTIVE DATE: Upon receipt.

4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B, Attachment 4, § a (5), this Notice will remain in effect until rescinded or superseded.

5. ORIGINATOR: ADEA Division, Office of Legal Counsel.

6. INSTRUCTIONS: File after the last Policy Guidance in the 800 series of Volume II of the Compliance Manual.

7. SUBJECT MATTER:

I. Introduction

Sections 2.8 and 13 of Volume I of the Compliance Manual (CM) set forth the basic procedures for assessing and processing cases in which preliminary judicial relief is being considered. In addition to directing that retaliation cases[1] be given priority consideration (see sections 2.8(a) and 13.4(b) and (c)), Volume I procedures provide that Title VII and ADEA cases be assessed to determine their suitability for preliminary relief using the following criteria: (1) the violation just occurred, is about to occur, or is ongoing; (2) there is substantial evidence to support a violation finding; (3) there is a need to preserve the status quo; and (4) irreparable harm would result without the preliminary relief. See section 13.4(a). The following discussion will analyze how various courts have applied the standards governing the granting of preliminary injunctive relief in different factual contexts.

II. Discussion

Section 706(f)(2) of Title VII specifically authorizes the Commission to seek preliminary relief pending final resolution of a charge, whenever a preliminary investigation reveals that prompt judicial action is necessary to achieve the purposes of Title VII. Both the Commission and private parties may also seek preliminary relief as an auxiliary part of a Title VII[2] or ADEA lawsuit[3] on the basis of traditional equitable standards.[4]

Generally, the purpose of a preliminary injunction is to preserve the status quo between the parties pending a final determination on the merits of the case. Preliminary injunction cases are decided on a case?by?case basis and tend to be highly fact-specific. While some broad generalizations about the traditional equitable grounds governing the granting of preliminary relief can be stated, it is not uncommon to find factually similar cases, governed by essentially identical legal standards, decided totally differently.

A. Section 706 (f)(2)

Section 706(f)(2) of Title VII provides as follows:

(2) 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. Any temporary restraining order or other order granting preliminary or temporary relief shall be issued in accordance with rule 65 of the Federal Rules of Civil Procedure.[5]

42 U.S.C. § 2000e?5(f)(2).

When the Commission seeks preliminary relief under section 706(f)(2), certain courts have relaxed the traditional requirements (see discussion of traditional equitable grounds below) by not requiring a showing of irreparable injury. See, e.g., EEOC v. Pacific Press Publishing Ass'n, 535 F.2d 1182, 1187 (9th Cir. 1976); EEOC v. Pacific Southwest Airlines, 587 F. Supp. 686 (N.D. Cal. 1984).

Other courts adhere to traditional equitable standards and require a showing of irreparable injury to either the EEOC or the charging party. See, e.g., EEOC v. Anchor Hocking, 666 F.2d 1037, 1040?43 (6th Cir. 1981); EEOC v. Chateau Normandy, 658 F. Supp. 598, 601?03 (S.D. Ind. 1987); EEOC v. Target Stores, 35 EPD ¶ 34,654 (D. Minn. 1984); EEOC v. Howard University, 32 EPD ¶ 33,775 (D.D.C. 1983).

The Commission will seek preliminary relief whenever its investigation is impeded by unlawful or obstructive conduct interfering with the enforcement of Title VII, for example, retaliatory action or destruction of records. See, e.g., EEOC v. Recruit U.S.A., Inc., 53 EPD ¶ 39,778 (N.D. Cal. 1990) (temporary restraining order entered in Title VII/ADEA case where records were in danger of being altered or destroyed).

B. Traditional Standards Governing the Granting of Preliminary Relief

The precise legal standards governing the granting of preliminary relief generally,[6] including under the ADEA and Title VII, differ somewhat depending on the circuit. However, while the phrasing, relative importance, and balancing of the four prongs vary slightly, the majority of courts consider the following basic factors in deciding whether preliminary relief is appropriate:

(1) the movant's likelihood of success on the merits;

(2) whether or not the movant will suffer irreparable injury without the preliminary injunction;

(3) whether or not that injury outweighs the harm to the other party(ies) if the preliminary injunction is issued;

(4) whether the granting or denial of the preliminary injunction is in the public interest.[7]

The Second and Ninth Circuits apply a slightly different standard that requires the movant to demonstrate irreparable injury and either (1) a likelihood of success on the merits, or (2) both serious questions going to the merits, and that the balance of hardships tips sharply in movant's favor.[8] As stated by the Ninth Circuit, these are not separate tests, but the outer reaches of the same continuum. Los Angeles Memorial Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1200?01 (9th Cir. 1980) (citations omitted).

Likelihood of Success on the Merits

This prong is relatively self?explanatory. Courts will examine the facts of record on a case?by?case basis to determine plaintiff's likelihood of prevailing on the merits under governing legal standards. See, e.g., Anderson v. Douglas & Lomason Co., 835 F.2d at 132 (5th Cir. 1988) (plaintiffs failed to establish a substantial likelihood of success on the merits of their Title VII claim of discriminatory hiring practices where the evidence showed that the percentage of minorities hired by respondent mirrored or exceeded the percentage of blacks in the most relevant labor pools); EEOC v. Cosmair, 821 F.2d 1085, 1088 (5th Cir. 1987) (EEOC established a substantial likelihood of success on merits of retaliation claim where evidence showed that respondent had no legal excuse for suspending severance payments after plaintiff filed an ADEA charge); EEOC v. State of N.J., 620 F. Supp. at 983-995 (D.N.J. 1985) (plaintiffs failed to establish a reasonable likelihood that they would prevail in light of defendant's evidence showing that a mandatory retirement age of 55 qualifies as a BFOQ for state police under the ADEA); EEOC v. Bowling Green, Ky., 607 F. Supp. 524, 525?26 (W.D. Ky. 1985) (plaintiff demonstrated a substantial likelihood of success on its Title VII claim that a mandatory, age-57 retirement for police officers violated the ADEA); Farkas, 554 F. Supp. at 26?28 (N.D.N.Y. 1982) (plaintiff demonstrated a likelihood of success on the merits of his ADEA claim of discriminatory promotion practices where he made out a prima facie case under McDonnell Douglas and respondent failed to articulate any reason for why younger applicants were chosen over plaintiff).

Irreparable Harm or Injury

Courts frequently take cognizance of the Supreme Court's admonition that irreparable injury occurs to plaintiffs in actions alleging unlawful discharge from employment only in "extraordinary" cases. See, e.g., EEOC v. State of New Jersey, 620 F. Supp. at 995?96 (D.N.J. 1985) (quoting Sampson v. Murray, 415 U.S. 61, 92 n.68 (1974)). In discharge cases, the temporary loss of income, which will eventually be recovered by the successful plaintiff, and any attendant damage to reputation resulting from a discharge which is later determined to be unlawful, generally fall "far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction...." Sampson, 415 U.S. at 91?92. "The possibility that adequate compensatory or other corrective relief will be available at a later date in the ordinary course of litigation, weighs heavily against a claim of irreparable harm." Id. at 90 (citations omitted). "[A]n insufficiency of savings or difficulties immediately obtaining other employment ? external factors common to most discharged employees and not attributable to any unusual actions relating to the discharge itself ? will not support a finding of irreparable injury, however severely they may affect a particular individual." Id. at 92 n. 68.

Bearing this in mind, however, note that both the Fifth and the Eleventh Circuits have held that irreparable injury is presumed from violations of civil rights statutes where the plaintiff has exhausted his/her administrative remedies.[9] See, e.g., Buckeye Cellulose Corp., 856 F.2d at 169 (11th Cir. 1988) (Title VII); Anderson, 835 F.2d at 132 (5th Cir. 1988) (Title VII). The Fifth Circuit has also extended the presumption of irreparable harm to ADEA retaliation cases. Cosmair, 821 F.2d at 1080 (5th Cir. 1987).

In circuits which do not employ a presumption of irreparable injury, the required showing to establish irreparable injury will vary. The following cases illustrate a variety of factual scenarios where courts have found irreparable injury to have been established. See, e.g., Chrysler, 733 F.2d at 1186 (6th Cir. 1984) (evidence that Chrysler's decision to force certain individuals to retire early caused "loss of work and loss of future prospects for work as well as causing individuals to suffer from such problems as emotional distress, depression, increased drug use, decrease in feelings of a useful life, a contracted social life, increased cigarette consumption, lassitude, sexual problems, and a reduced sense of well?being" supported a finding of irreparable injury); Reynolds v. Sheet Metal Workers, 702 F.2d 221, 226 (D.C. Cir. 1981) (the court found that continued selection of apprentices on a discriminatory basis would irreparably injure class members by denying them entry into the trade, particularly where admission of new apprentices varied with economic conditions and was uncertain); City of Bowling Green, 607 F. Supp. at 527 (W.D. Ky. 1985) (even though a member of the police department could collect damages and be reinstated at a future time, a likelihood of irreparable injury was established since he would suffer from his inability to keep up with current matters in the police department and from anxiety and emotional problems due to compulsory retirement); Target Stores, 35 EPD ¶ 34,654 (D. Minn. 1984) (threat of irreparable harm found where others who became aware of retaliatory discharge of a high?level black manager would be chilled from opposing discriminatory practices or participating in EEOC processes and where the charging party's termination would cause him to miss training opportunities and new marketing programs, as well as affecting his morale and reducing his acceptability to other employees); EEOC v. Tufts Institution, 421 F. Supp. 152, 165 (D. Mass. 1975) (denial of university tenure and resulting termination because of sex discrimination found to constitute irreparable injury because of injury to candidate's academic reputation and the virtual foreclosure of her prospects for obtaining another position if she were not presently employed).

The following cases illustrate a variety of factual scenarios, some virtually identical to those described in the preceding paragraph, where courts have found that irreparable injury was not established. See, e.g., Cox, 868 F.2d at 223 (7th Cir. 1989) (minority lieutenants in city fire department who sought preliminary injunction to prevent application of captain eligibility rule, which provided that only captains in fire department would be eligible to take examination for battalion chief, did not demonstrate that they would suffer irreparable injury if not allowed to take the exam, since although they might suffer some delay in their promotion to battalion chief, the giving of such exam could be ordered if plaintiffs succeeded on the merits of their disparate impact claim); Moteles, 750 F.2d at 919 (3d Cir. 1984) (involuntary transfer to another shift resulting in missed language classes and sleep disturbance amounted to nothing more than inconvenience and was not enough to warrant the issuance of a preliminary injunction); O'Connor, 728 F.2d at 1003 (8th Cir. 1984) (college instructor who alleged that she was being terminated due to sex discrimination would be harmed by the non-renewal of her contract, but such harm was not irreparable and could be compensated by money damages); Greer v. S. Carolina Wildlife & Marine Resources, 632 F. Supp. 903, 906 (D. S.C. 1986) (plaintiff's allegation that his age 65 mandatory retirement would constitute irreparable injury due to 1) his inability to keep current with developments at work and 2) emotional problems stemming from forced retirement rejected); EEOC v. State of N.J., 620 F. Supp. at 996?97 (D.N.J. 1985) (age 65 mandatory retirement of state police officers would not result in irreparable injury despite showing of diminution in income, tension and morale problems within the department if sworn members now in positions of command returned to their current positions at some future point displacing their replacements, loss of job skills and the difficulty of retraining, and psychological difficulties stemming from forced retirement); Ferrell, 569 F. Supp. at 20 (M.D.N.C. 1983) (plaintiff's claim that losing her librarian position, along with research opportunities and other invaluable relationships involving her professional career in the academic community, would irreparably harm her rejected by court).

In sum, determinations of what constitutes irreparable harm vary greatly. Such findings are always highly fact-specific, and within the discretion of the court.

An attempt to designate or define specific circumstances that the Commission would deem to constitute irreparable harm would probably be both underinclusive and overinclusive. Each charge must be evaluated on its own merits, in light of the specific facts and circumstances, to determine the appropriateness of seeking preliminary relief in the courts. However, investigators should be particularly alert for circumstances involving 1) any type of retaliatory or coercive action, including threats of physical harm or intimidation; 2) interference with the investigatory process, e.g., destruction of records; 3) harassment; 4) discriminatory conduct affecting a class of individuals; 5) repeated egregious discriminatory conduct by the same respondent; and 6) any individualized factors which would render eventual corrective relief in the ordinary course of litigation inadequate to make the charging party whole.

In view of the difficulty in providing a universal definition of what constitutes irreparable harm, investigators should not hesitate to consult their District Office Legal Unit whenever they believe there are circumstances which might potentially result in irreparable harm to the charging party or the Commission's enforcement efforts.

Injury to Other Parties and Impact on the Public Interest

In determining whether to grant preliminary relief, courts will also consider the harm or injury to other parties that would result from the granting of the preliminary injunction, as well as its impact on the public interest. The following cases illustrate a variety of factual scenarios where courts have found that the balance of harms to the affected parties, and/or the public interest supported the granting of preliminary relief. See, e.g.,Reynolds, 702 F.2d at 226 (D.C. Cir. 1981) (where plaintiffs established likelihood of success and irreparable injury, court found that inconvenience to alleged discriminating union posed by the need to formulate a nondiscriminatory selection procedure was minimal, since preliminary injunction left the union considerable flexibility to devise new selection criteria, and furthermore, that the public interest was furthered by remedying racial injustice and would not be jeopardized since the union's training and supervision precluded any danger to the public from unqualified apprentices); Golden v. Lutheran Family Services, 601 F. Supp. 383, 384 (W.D.N.C. 1984) (court found that plaintiff's probability of ultimate success on the merits was high, that the balance of hardship was in plaintiff's favor where he was likely to suffer irreparable harm from racially discriminatory discharge, while defendant would not be harmed by preliminary injunction requiring reinstatement of plaintiff where plaintiff was considered an excellent worker despite his administrative deficiencies, and furthermore, that the public interest would not be adversely affected by such action, but rather would be served by the remedying of racial discrimination); Chrysler Corp., 546 F. Supp. at 71 (E.D. Mich. 1982) ((a) while the court recognized the defendant's arguments of economic hardship that had necessitated a major reduction?in?force, the court found that the dislocation and hardship to defendant's current work force which would result from a preliminary injunction requiring the reinstatement of a small group of involuntary retirees was less than the harm the individual claimants would continue to suffer in their forced retirements, further noting that even if the harms cancelled each other out, plaintiffs' likelihood of success on the merits would tip the scales in their favor; (b) in addressing the impact on the public interest, the court weighed the injury to the public at large caused by involuntary retirement which perpetuates ageist stereotypes and the public interest in enforcement of the law as written against the public interest in allowing a struggling corporation to effect a reduction?in?force so that a viable entity providing employment would survive, and concluded that the limited relief necessary at this stage to prevent further irreparable harm to plaintiffs favored the public's interest in both enforcement of the law, and maintenance of a viable economic base); City of Bowling Green, 607 F. Supp. at 527 (W.D. Ky. 1985) (in case involving the impending mandatory retirement of a member of the police department, the court, after finding a great likelihood of success on the merits and the likelihood of irreparable harm, noted that preliminary relief would not result in substantial harm to other members of the force or the city and that no public interest would be served by removing plaintiff from the force pending the outcome of the case).

The following cases illustrate factual scenarios where courts have found that a preliminary injunction would adversely affect the interests of other parties and/or the public interest. See, e.g., EEOC v. State of N.J., 620 F. Supp. at 997 (D.N.J. 1985) (the court found that a preliminary injunction barring the enforcement of the mandatory retirement age for state police officers would adversely affect the public interest by presenting a risk of harm to the individuals involved, to other officers and to the public's safety where the physical abilities of the plaintiffs were in question, and furthermore, by limiting promotion opportunities, which would injure morale and possibly lead to a breakdown in productivity); Ferrell, 569 F. Supp. at 20 (M.D.N.C. 1983) (after finding that plaintiff had not established probable irreparable harm, the court found that if a preliminary injunction issued requiring defendant to renew the plaintiff's contract as a librarian, defendant would suffer irreparable harm due to possible loss of accreditation because of poor management during plaintiff's tenure, her ongoing inability to work with library staff, many of whom had threatened to leave, as well as plaintiff's negative attitude, and thus, the court concluded that the balance of harms was struck in defendant's favor). Again, such determinations tend to be highly fact-specific, and will vary accordingly.

The following examples set forth clear?cut, definitive situations where the Commission, and probably most courts, would deem preliminary relief manifestly appropriate or, in the case of example 4, inappropriate. It should be noted that most charges are unlikely to present such unequivocal facts, and that preliminary relief may be appropriately sought and granted in situations which do not rise to this carefully prescribed level of clarity.

As demonstrated by the numerous factual examples of when courts have ordered and denied preliminary relief, such determinations are made on a case?by?case basis, based upon the specific facts and circumstances of the particular parties. Accordingly, investigators should not hesitate to bring any potentially suitable charge to the attention of the District Office Legal Unit for additional evaluation.

Example 1 ? After being abruptly terminated with no explanation the day after his 60th birthday, CP filed an age discrimination charge. CP stated that since he has always received excellent performance evaluations, he feels that the only reason he was fired was his age. CP further explained that there have been rumors that R has been attempting to weed out older employees in an attempt to lower the group health insurance premium.

The Investigator interviews several of CP's co?workers. Ms. Smith and Mr. Jones are particularly helpful and forthcoming. Both are able to supply evidence corroborating CP's allegations. When the investigator recontacts them several days later, however, he finds that neither of them is willing to speak with him. Other co?workers the investigator attempts to interview state that they have nothing to say.

Later that day, the investigator receives an anonymous phone call. The caller states that Ms. Smith and Mr. Jones have been assigned to duties that are generally considered highly undesirable and have been warned that they could easily find themselves out the door with no reference. The caller states that other employees have gotten the not so subtle message?-cooperate with the EEOC and you'll regret it.

The investigator feels that R's action towards Ms. Smith and Mr. Jones will cause irreparable harm to the Commission's investigation, because Smith, Jones, and other employees are now unwilling to cooperate because they fear retaliatory action. The investigator immediately contacts the District Office Legal Unit for additional guidance on whether preliminary relief should be sought in order to maintain the integrity of the investigation.

Example 2 ? CP, a 25?year?old female, filed a charge alleging sexual harassment. The Investigator determines that CP's supervisor has made repeated sexual advances that have created a hostile and offensive working environment. When CP contacts the Investigator several weeks later, states that things are getting worse, and details recent conduct by her supervisor which is one step away from criminal sexual assault, the Investigator immediately contacts the District Office Legal Unit for guidance on whether preliminary relief should be sought.

Example 3 ? CP, a 59?year?old employee with many years of experience and an excellent reputation, is informed by her employer that she must transfer to a plant in another state in the next 30 days. CP files an ADEA charge, believing that this is an attempt to force her out of the work place solely because of her age.

CP had planned to take early retirement in 12 months when she turns sixty, in order to spend more time with her ailing husband, who doctors say has only a couple more years to live. She cannot afford to retire now because her pension would be significantly reduced, and she would lose the health benefits upon which she and her husband depend. Her husband requires specialized medical care that is not available in the small town where she would be transferred. Furthermore, CP's husband is no longer capable of living independently, and thus CP cannot leave him living alone in their home while she lives in another state for 12 months until such time as she can retire. In any event, even if CP were able to arrange and pay for live?in help to care for her husband during her twelve months away, she is highly distraught at the very real possibility that her husband will die alone during this period.

The investigator finds substantial evidence that CP's transfer was a blatant attempt to get rid of her because of her age. R has made clear its preference for a younger, dynamic work force. There is compelling evidence that the discriminatory transfer presents CP with impossible choices, all of which will lead to irreparable harm. The investigator contacts the District Office Legal Unit for guidance on whether preliminary relief should be sought.

Example 4 ? CP, age 43, files a charge after being informed that he will be transferred to a different sales department within his company next month. CP likes selling the product line he currently sells because he feels it is a superior product with excellent commission potential. Moreover, his sales territory encompasses the warmer climate of the Southwest. CP feels that he will be disadvantaged by the transfer because he will be selling a new product without an established reputation in several cold weather states where he is not familiar with the market. CP earns a base salary plus commission and feels that his overall earnings will drop. CP will continue to be based in the same city.

CP alleges that the impending transfer is motivated by his age. CP states that R knows it cannot come right out and terminate older workers and that assigning older workers less desirable products and sales territories is a backhanded way to force them out of the work force.

R states that it is restructuring its sales force and that the needs of the company, not CP's age, dictated that he be assigned another product and territory.

The investigator's preliminary investigation reveals conflicting evidence, most of which does not support a finding of discrimination. The investigator correctly concludes that a recommendation for preliminary relief would not be appropriate in this instance.

III. Assessing Cases to Determine Whether Preliminary Relief Should Be Sought

Beyond listing the traditional equitable factors that are considered by courts in deciding whether to grant preliminary relief, it is difficult to generalize about specific factual scenarios where preliminary relief will typically be granted or denied. As a practical matter, the particular facts of a case may appeal to a court. Similarly, a strongly compelling showing of one of the relevant factors may indirectly influence the assessment of the other factors, by swaying the equities in the moving party's favor. A court has substantial discretion to determine whether the status quo should be maintained to prevent irreparable injury to a party pending final resolution of a case on the merits, and such determinations are always highly fact-specific.

As noted above, charges involving allegations of retaliation should always be closely evaluated to determine whether preliminary relief is necessary to protect the Commission's ability to enforce the law, and the affected individual's interests. See § 13.4(b) of Vol. I, CM and § 614 of Vol. II, CM.

Cases outside of the retaliation context should be initially screened to determine whether preliminary relief should be sought pursuant to the following criteria outlined at

§ 13.4(a) of Vol. I:

(1) The violation just occurred, is about to occur, or is ongoing;

(2) There is substantial evidence to support a finding of violation;

(3) There is a need to preserve the status quo;

(4) Irreparable harm would result without the preliminary injunction.

While preliminary relief is not a routine remedy, whenever the equities of a charge appear to possibly warrant preliminary relief, investigators should consult with the District Office Legal Unit for further guidance.

Date: August 13, 1990 Approved: _________________________

Evan J. Kemp, Jr.

Chairman