
USCA1 Opinion

	




          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
