* Pursuant to Local Rule 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 95-30347

_______________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellee,

versus

ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

(CA-93-597-G)

_________________________________________________________________

March 20, 1996

Before JONES, EMILIO M. GARZA, and BENAVIDES, Circuit Judges:

EDITH H. JONES, Circuit Judge:*

The Association of Community Organizations for Reform Now

(“ACORN”) appeals the district court’s grant of summary judgment in

favor of the Equal Employment Opportunity Commission (“EEOC”),

ordering ACORN to comply with EEOC reporting requirements by filing

an Employee Information Report (“EEO-1") for every year since 1990.

After reviewing de novo the district court’s grant of summary

judgment and after considering the evidence in the light most

favorable to ACORN, this court AFFIRMS.
2

ACORN is a multi-state, nonprofit advocacy organization

dedicated to the advancement of low and moderate income Americans.

While twenty-nine states and the District of Columbia authorize

ACORN to conduct its advocacy activities, it has offices only in

four states. Since at least January of 1990, ACORN has

continuously employed over 100 persons.

Title VII of the Civil Rights Act of 1964 requires

employers to file with the EEOC an Employers Information Report, or

EEO-1, if they employ at least 100 employees in the fifty states.

42 U.S.C. § 2000e-8(c). Even though ACORN employs the requisite

number of personnel to trigger this reporting requirement, it has

consistently refused to complete and file an EEO-1 since January of

1990.

Seeking to redress ACORN’s refusal, the EEOC filed suit

in the Eastern District of Louisiana. ACORN initially replied that

the EEOC lacked jurisdiction over it because ACORN was not an

organization “affecting commerce.” ACORN further argued that the

EEOC’s reporting requirements unconstitutionally impinge on its

First Amendment rights to association, expression, and

organizational privacy. The district court, rejecting each of

these contentions, ordered ACORN to file an EEO-1 report for every

year since 1990.

This court reviews the district court's grant of summary

judgment de novo, employing the same criteria under Fed. R. Civ. P.

56 used in that court. Burfield v. Brown, Moore & Flint, Inc., 51

F.3d 583, 588 (5th Cir. 1995). 
3

1. Jurisdiction: “Affecting Commerce”

Employers subject to Title VII must engage in activities

that “affect commerce.” See 42 U.S.C. § 2000e(b). ACORN contends

that the district court erred when it concluded that ACORN’s

advocacy activities affect commerce in such a manner that the EEOC

can assert jurisdiction over ACORN through Title VII. 

The Supreme Court has instructed that the phrase “affect

commerce” evinces the intent of Congress to exercise the full

extent of its power under the Commerce Clause. Polish Nat’l

Alliance of the U.S. v. NLRB, 322 U.S. 643, 647, 64 S.Ct. 1196,

1198 (1944). Likewise, this court has held the phrase should be

construed liberally to effectuate and maximize the remedial

purposes of Title VII. See, e.g., Harvey v. Blake, 913 F.2d 226,

227 (5th Cir. 1990). See also, EEOC v. Ratliff, 906 F.2d 1314,

1316 (9th Cir. 1990) (jurisdictional requirement that an employer’s

activities affect commerce is easily satisfied). Even though an

organization such as ACORN does not operate for profit, if its

activities affect commerce, the organization is nonetheless subject

to Title VII. See NLRB v. Yeshiva Univ., 444 U.S. 672, 681 n.11,

100 S.Ct. 856, 862 n.11 (1980); NLRB v. Lighthouse for the Blind,

696 F.2d 399, 404 n.21 (5th Cir. 1983); McClure v. Salvation Army,

460 F.2d 553, 557 (5th Cir.), cert. denied, 409 U.S. 896 (1972).

Construing the commerce requirement of Title VII

liberally, the district court properly concluded that ACORN’s

activities affect commerce. Facts stipulated by ACORN prove as

much. ACORN has offices in three states as well as the District of
4

Columbia and either conducts business or is registered to do so in

twenty-seven other states. It employs continuously at least 100

persons per year, while regularly employing nearly 500 employees

yearly. ACORN frequently conducts business with other companies

engaged in interstate commerce. It rents commercial property in

several states. It withholds from its employees’ paychecks federal

income taxes, OASDI taxes for Social Security and Medicare and

various state and local income taxes. 

Considering the nature and extent of ACORN’s business

activities, the district court reasoned that if ACORN were to shut

down, the cessation would burden or obstruct commerce because

“[m]ail and phone services would no longer be utilized. Office

supply and repair services would no longer be utilized. Various

media forms would be affected. And, finally, hotel[s] and airlines

would be impacted.” Moreover, in its advocacy activities, ACORN

sometimes undertakes deliberately to affect commerce in order to

promote social change. These connections to commerce may be small

in absolute terms, but they are sufficient to characterize ACORN as

an employer that affects commerce under the purview of Title VII.

See, e.g., Polish Nat’l Alliance, 322 U.S. at 645-46, 64 S.Ct. at

1198 (concluding that a fraternal benefit society providing

insurance to members in twenty-seven states was subject to the NLRA

because its activities affected commerce); NLRB v. Imperial House

Condominium, 831 F.2d 999, 1005 (11th Cir. 1987) (holding that an

entity which is principally noncommercial and produces no

commodities nevertheless affects commerce by meeting payroll,
5

paying taxes, and transacting with other businesses engaged in

interstate commerce).

Contrary to ACORN’s suggestion, this result is not

undercut by United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624,

1629-30 (1995). In Lopez, the Supreme Court affirmed this court’s

determination that the Gun-Free School Zones Act (“Act”) exceeded

congressional authority under the Commerce Clause because the Act

contained no “express jurisdictional element which might limit its

reach to a discrete set of firearm possessions that additionally

have an explicit connection or effect on interstate commerce.”

Lopez, ___ U.S. at ___, 115 S.Ct. at 1631. Since there was no

particularized showing of a link between the mere possession of a

firearm near a school and interstate commerce, the Court held the

Act unconstitutional, explaining that

[t]he possession of a gun in a local school

zone is in no sense an economic activity that

might, through repetition elsewhere,

substantially affect any sort of interstate

commerce. Respondent was a local student at a

local school; there is no indication that he

recently moved in interstate commerce, and

there is no requirement that his possession of

the firearm have any concrete tie to

interstate commerce.

Lopez, ___ U.S. at ___, 115 S.Ct. at 1634.

Unlike the Act overturned in Lopez, Title VII has express

jurisdictional provisions intended to demarcate congressional

authority. See, e.g., 42 U.S.C. § 2000e(b). Further, as discussed

earlier, despite ACORN’s assertion that its advocacy activities are

neither economic nor commercial, the organization’s activities

affect commerce, by means of the hiring of employees in several
6

states, the purchasing of supplies, the rent or purchase of

commercial property, and the use of airline, hotel, media and other

communication services. In this case, unlike Lopez, there is a

discernible link between ACORN’s activities and interstate commerce

sufficient to subject ACORN to the EEOC’s jurisdiction.

2. First Amendment Claims

a. Right of Private Association

ACORN alternatively contends that EEOC’s reporting

requirements including the EEO-1 are unconstitutional, violating

ACORN’s right of private association. ACORN asserts that when

individuals associate for noncommercial reasons, the First

Amendment imposes upon government a heavy burden to justify any

attempts to regulate such association. See, e.g., Federal Election

Comm’n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 107

S.Ct. 616 (1986); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97

S.Ct. 1782 (1977). The district court disagreed that ACORN was

entitled to strenuous First Amendment protection, concluding that

ACORN lacks the personal, family-like

relationship required to entitle it to

‘private association’ protection. It is both

large in size and solicits contributions from

total strangers. The ‘private association’

aspect of the freedom of association protected

by the First Amendment is not applicable to

the case at bar.

To support its claim that the district court erred, ACORN

relies on the right of “identity construction” purportedly

announced in Roberts v. United States Jaycees, 468 U.S. 609, 104

S.Ct. 3244 (1984). In Roberts, the Supreme Court instructed that

[b]ecause the Bill of Rights is designed to
7

secure individual liberty, it must afford the

formation and preservation of certain kinds of

highly personal relationships a substantial

measure of sanctuary from unjustified

interference by the State . . . . [C]ertain

kinds of personal bonds have played a critical

role in the culture and tradition of the

Nation by cultivating and transmitting shared

ideals and beliefs . . . . Protecting these

relationships from unwarranted state

interference therefore safeguards the ability

independently to define one’s identity that is

central to any concept of liberty. 

Roberts, 468 U.S. at 618-19, 104 S.Ct. at 3250. The Court

identified factors that suggest whether a relationship merits First

Amendment protection: the small size of the related group; the

selectivity involved in creating and maintaining the affiliation;

and the seclusion from others in critical aspects of the

relationship. Roberts, 468 U.S. at 620; 104 S.Ct. at 3250.

But the First Amendment right articulated in Roberts does

not extend to ACORN. In Roberts, the Court posited that the

relationships which merit such First Amendment protection are

deeply personal, such as those that “attend the creation and

sustenance of family [including] marriage, childbirth, the raising

and education of children, and cohabitation with one’s relatives.”

Roberts, 468 U.S. at 619; 104 S.Ct. at 3250. Although the Court

later acknowledged in Board of Directors of Rotary Int’l v. Rotary

Club of Duarte, 481 U.S. 537, 545, 107 S.Ct. 1940, 1946 (1987),

that this associational right is not limited to relationships among

family members, it does “presuppose ‘deep attachments and

commitments to the necessarily few other individuals with whom one

shares not only a special community of thoughts, experiences, and
8

beliefs but also distinctly personal aspects of one’s life.’”

(quoting Roberts, 468 U.S. at 619-20, 104 S.Ct. at 3250) (emphasis

added). 

The bond between members of ACORN is simply not the type

of relationship contemplated by either Roberts or Rotary Int’l that

would merit First Amendment protection for “identity construction.”

After all, ACORN is a relatively expansive group with members in

twenty-nine states and the District of Columbia. The advocacy

group’s activities are rarely secluded; rather, many of its

activities, including recruiting members, promoting legislation,

referenda or other political action, and mobilizing public opinion

and consumer response are decidedly and intentionally public.

ACORN cannot demonstrate that its activities result from a deeply

personal relationship among its members that merits First Amendment

protection in the way that familial relationships and others that

“have played a critical role in the culture and tradition of the

nation” assuredly do. Roberts, 468 U.S. at 618, 104 S.Ct. at 3250.

The First Amendment right of private association does not insulate

ACORN from compliance with the EEOC’s reporting requirements,

including EEO-1.

b. Right of Expressive Association

ACORN also asserts that its hiring practices, hence, its

right of expressive association, would be profoundly affected by

these reporting requirements, since compliance would enable the

EEOC to monitor, control, and publicize ACORN’s employment

practices. ACORN speculates further that this impact on its
 

1 Even if ACORN is concerned that its ability to advocate somehow

requires it to ignore compliance with Title VII and to hire on the basis of

discrimination, that problem does not arise in this lawsuit. Filing EEO-1

reports does not dictate ACORN’s hiring practices. If and when a Title VII

enforcement action is filed against ACORN for employment discrimination, the

advocacy group may renew its First Amendment defense.

9

employment practices would enable the EEOC to regulate indirectly,

yet impermissibly, the content of ACORN’s advocacy. To ACORN, the

district court erred when it concluded that compliance with the

EEOC’s reporting requirements would not impede ACORN’s advocacy and

that, moreover, “there is no [constitutional] basis for selectivity

in terms of who should convey [ACORN’s] message.”

ACORN’s complaints are unfounded, however, because the

EEOC reporting requirements simply do not regulate speech, attempt

to suppress advocacy by ACORN, or impose viewpoint discrimination

or any other constitutionally impermissible criteria on ACORN.

Neither in oral argument nor in its briefs to this court did ACORN

demonstrate how compliance with EEO-1 would in any way impede its

advocacy activities. The EEO-1 merely requires an employer to

report the number of its employees and identify its employees’

racial and gender classifications. Because compliance with the

EEOC reporting requirements does not restrict or interfere with

ACORN’s advocacy in any articulated way, the district court

properly concluded that such compliance does not implicate ACORN’s

associational rights under the First Amendment.1 See, e.g., Board

of Directors of Rotary Int’l v. Rotary Club of Duarte, supra, 481

U.S. at 548, 107 S.Ct. At 1947 (“evidence fails to show how

admitting women to Rotary Clubs will affect in any significant way
10

the existing members’ ability to carry out their various

purposes.”)

c. Organizational Right to Privacy

Finally, ACORN argues that it enjoys a constitutional,

organizational right to privacy that is somehow invaded because the

information required by the EEO-1 would allow ACORN’s opponents to

exploit information concerning the organization’s demographics.

Therefore, ACORN concludes, the government should be precluded from

compelling ACORN’s compliance with the reporting requirements

absent a showing that this compliance substantially advances an

important governmental interest.

But ACORN’s concerns are again unsupported. The EEO-1

does not require ACORN to divulge the names, identities, or any

other personal information about either its employees or members.

Instead of identifying such employees or members by name or

address, the data comprise a statistical analysis of the racial and

gender composition of ACORN’s workforce. Because the EEO-1 does

not require ACORN to provide sensitive or personal information, it

does not interfere with whatever organizational privacy rights that

ACORN may enjoy. See, e.g., Tony & Susan Alamo Found. v. Secretary

of Labor, 471 U.S. 290, 305-06, 105 S.Ct. 1953, 1963-64 (1985)

(upholding the record keeping requirement of the Fair Labor

Standards Act as a “routine and factual inquiry” that falls short

of unjustified governmental surveillance).

CONCLUSION

For the foregoing reasons, this court AFFIRMS the
11

district court’s grant of summary judgment in favor of the EEOC and

its order that ACORN comply with EEOC reporting requirements by

filing an EEO-1 for every year since 1990.