Great American Federal Savings & Loan Ass'n v. Novotny

Me. Justice Powell,

concurring.

I agree with the opinion of the Court as far as it goes, and I join it. I also agree with the views expressed by Mr. Justice Stevens’ concurring opinion. I write separately because *379 it seems to me that the Court’s decision affords unnecessarily limited guidance to courts in the federal system.

The Court’s specific holding is that 42 U. S. C. § 1985 (3) (1976 ed., Supp. II) may not be invoked to redress violations of Title VII. The broader issue argued to us in this case was whether this Civil War Era remedial statute, providing no substantive rights itself, was intended to provide a remedy generally for the violation of subsequently created statutory rights. For essentially the reasons suggested by Mr. Justice Stevens, I would hold that § 1985 (3) should not be so construed, and that its reach is limited to conspiracies to violate those fundamental rights derived from the Constitution.

The Court’s unanimous decision in Griffin v. Breckenridge, 403 U. S. 88 (1971), is to this effect. The alleged conspiracy there was an attempt by white citizens, resorting to force and violence, to deprive Negro citizens of the right to use interstate highways. In sustaining a cause of action under § 1985 (3), the Court found that the alleged conspiracy — if implemented — would viólate the constitutional “right of interstate travel” as well as the right of Negro citizens to be free from “invidiously discriminatory” action. The Court declared:

“That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others. For, though the supporters of the legislation insisted on coverage of private conspiracies, they were equally emphatic that they did not believe, in the words of Representative Cook, That Congress has a right to punish an assault and battery when committed by two or more persons within a State.’ [Cong. Globe, 42d Cong., 1st Sess., 485 (1871).] The constitutional shoals that would lie in the path of interpreting § 1985 (3) as a general federal tort law can be avoided by giving full effect to the congressional purpose — by requiring, as an element of the cause of action, the kind of invidiously *380 discriminatory motivation stressed by . the sponsors of the limiting amendment. See the remarks of Representatives Willard and Shellabarger, quoted supra, at 100. The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.” 403 U. S., at 101-102 .

In reaching its conclusion, the Court identified “two constitutional sources” (id., at 107) relied upon to support a cause of action under § 1985 (3):

“We can only conclude that Congress was wholly within its powers under § 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men.

“Our cases have firmly established that the right of interstate travel is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference. [Citations omitted.] The 'right to pass freely from State to State’ has been explicitly recognized as 'among the rights and privileges of National citizenship.’ Twining v. New Jersey, 211 U. S. 78, 97 . That right, like other rights of national citizenship, is within the power of Congress to protect by appropriate legislation.” Id., at 105-106 .

By contrast, this Court has never held that the right to any particular private employment is a “right of national citizenship,” or derives from any other right created by the Constitution. Indeed, even Congress, in the exercise of its *381 powers under the Commerce Clause of the Constitution, has accorded less than full protection to private employees. It excluded several classes of employers from the coverage of Title VII, for example, employers of fewer than 15 employees. See 42 U. S. C. § 2000e (b). Nor does the Constitution create any right to be free of gender-based discrimination perpetuated solely through private action.

The rationale of Griffin accords with the purpose, history, and common understanding of this Civil War Era statute. Rather than leave federal courts in any doubt as to the scope of actions under § 1985 (3), I would explicitly reaffirm the constitutional basis of Griffin. *

The doubts which will remain after the Court’s decision are far from insubstantial. At least one federal court, for example, has held that although Title VII rights may not be asserted through § 1985 (3), claims based on § 3 of the Equal Pay Act of 1963, 77 Stat. 56 , 29 U. S. C. §206 (d), may be raised in a §1985 (3) suit. Hodgin v. Jefferson, 447 F. Supp. 804, 808 (Md. 1978). See also Murphy v. Operating Engineers, Local 18, 99 LRRM 2074, 2124-2126 (ND Ohio 1978) (conspiracy to violate Labor-Management Reporting and Disclosure Act cognizable under § 1985 (3)); Local No. 1, ACA v. International Brotherhood of Teamsters, 419 F. Supp. 263, 276 (ED Pa. 1976) (same). I would take advantage of the present opportunity to make clear that this Civil War Era statute was intended to provide a remedy only for conspiracies to violate fundamental rights derived from the Constitution.