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

Mr. Justice White,

with whom Mr. Justice Brennan and Mr. Justice Marshall join,

dissenting.

The Court today releases employers acting with invidious discriminatory animus in concert with others from liability under 42 U. S. C. § 1985 (3) (1976 ed., Supp. II) for the in *386 juries they inflict. Because for both respondent in this case and as a general matter § 1985 (3) is an entirely consistent supplement to Title VII, I dissent.

I

Respondent sought compensatory damages under § 1985 (3) 1 on the ground that he had been injured by acts done in furtherance of a conspiracy for the purpose of depriving others of “equal privileges and immunities” guaranteed in § 703 (a) of Title VII, 2 which prohibits discrimination on the basis of, inter alia, sex. Additionally, and separately, respondent sought relief under Title VII itself on the ground that he had been deprived of his right under § 704 (a) of Title VII 3 not to be discriminated against because he assisted *387 others in asserting their Title VII rights. Petitioners have not sought review of the Court of Appeals’ holding that respondent had stated a cause of action under § 704 (a), and, accordingly, the Court does not address that issue. However, the majority holds that the claim under § 1985 (3) must be dismissed because “deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985 (3),” ante, at 378.

Unfortunately, the majority does not explain whether the “right created by Title VII” to which it refers is the right guaranteed to women employees under § 703 (a) or the right guaranteed to respondent under § 704 (a). Although in stating its view of the issue before the Court, the majority intimates that it is relying on the fact that respondent has a claim directly under § 704 (a), 4 the reasoning of the majority opinion in no way indicates why the existence of a § 704 (a) claim should prevent respondent from seeking to vindicate under § 1985 (3) the entirely separate right provided by § 703 (a).

Clearly, respondent’s right under § 704 (a) — to be free from retaliation for efforts to aid others asserting Title VII rights— is distinct from the Title VII right implicated in his claim under § 1985 (3), which is the right of women employees not to be discriminated against on the basis of their sex. More *388 over, that respondent in this case is in a position to assert claims under both § 1985 (3) and § 704 (a) is due solely to the peculiar facts of this case, rather than to any necessary relationship between the two provisions. First, it is of course possible that a person could be injured in the course of a conspiracy to deny § 703 (a) rights — as respondent claims under his § 1985 (3) cause of action — by some means other than retaliatory discrimination prohibited under §704 (a). Second, § 704 (a) itself protects only employees and applicants for employment; others, such as customers or suppliers, retaliated against in the course of a conspiracy to violate § 703 (a) are not expressly protected under any provision of Title VII. Indeed, if respondent in this case had been only a director, rather than both a director and an employee, of the Great American Federal Savings and Loan Association, he apparently would not be able to assert a claim under § 704 (a).

Because the existence of a § 704 (a) claim is due entirely to the peculiar facts of this case, I interpret the majority’s broad holding that “deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985 (3)” to preclude respondent from suing under § 1985 (3) not because he coincidentally has a § 704 (a) claim, but because the purpose of the conspiracy allegedly resulting in injury to him was to deny § 703 (a) rights.

II

The pervasive and essential flaw in the majority’s approach to reconciliation of § 1985 (3) and Title VII proceeds from its characterization of the former statute as solely a “remedial” provision. It is true that the words “equal privileges and immunities under the laws” in § 1985 (3) refer to substantive rights created or guaranteed by other federal law, be it the Constitution or federal statutes other than § 1985 (3); 5 and *389 in this case it is a conspiracy to deny a substantive right created in § 703 (a) of Title YII 6 that is part of the basis for respondent’s suit under § 1985 (3). 7 However, § 1985 (3), *390 unlike a remedial statute such as 42 TJ. S. C. § 1983, 8 does not merely provide a cause of action for persons deprived of rights elsewhere guaranteed. Because § 1985 (3) provides a remedy for any person injured as a result of deprivation of a substantive federal right, it must be seen as itself creating rights in persons other than those to whom the underlying federal right extends.

In this case, for instance, respondent is seeking to redress an injury inflicted upon him, which injury is distinct and separate from the injury inflicted upon the female employees whose § 703 (a) rights were allegedly denied. The damages available to a person such as respondent suing under § 1985 (3) are not dependent upon the amount of injury caused persons deprived of “equal privileges and immunities under the laws,” but upon the gravity of the separate injury inflicted upon the person suing. Cf. Sullivan v. Little Hunting Park, 396 U. S. 229, 254-255 (1969) (Harlan, J., dissenting).

In this circumstance — where the § 1985 (3) plaintiff is seeking redress for injury caused as a result of the denial of other persons’ Title VII rights — it makes no sense to hold that the remedies provided in Title VII are exclusive, for such a § 1985 (3) plaintiff has no Title VII remedy. 9 It thus can hardly be asserted that allowing this § 1985 (3) plaintiff to seek redress of his injury would allow such individual to “completely bypass” the administrative and other “detailed and specific” enforcement mechanisms provided in Title VII, ante, at 375-376.

In enacting § 1985 (3), Congress specifically contemplated that persons injured by private conspiracies to deny the fed *391 eral rights of others could redress their injuries, quite apart from any redress by those who are the object of the conspiracy. Griffin v. Breckenridge, 403 U. S. 88, 103 (1971). Nothing in the Court’s opinion suggests any warrant for refusal to recognize this cause of action simply because Title VII rights are involved.

Ill

I am also convinced that persons whose own Title VII rights have allegedly been violated retain the separate right to seek redress under § 1985 (3). In seeking to accommodate the civil rights statutes enacted in the decade after the Civil War and the civil rights statutes of the recent era, the Court has recognized that the later statutes cannot be said to have impliedly repealed the earlier unless there is an irreconcilable conflict between them. Runyon v. McCrary, 427 U. S. 160 , 173 n. 10 (1976). See Johnson v. Railway Express Agency, 421 U. S. 454, 457-461 (1975); Sullivan v. Little Hunting Park, supra, at 237-238. Cf. United States v. Johnson, 390 U. S. 563 (1968). Of course, the mere fact of overlap in modes of redressing discrimination does not constitute such irreconcilable conflict. See, e. g., Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974); Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968), and cases cited above. Indeed, we have embraced the notion of an implied repeal only when <f[i]t would require the suspension of disbelief to ascribe to Congress the design” to allow vindication under a Reconstruction statute of a right also subject to redress under one of the modern Civil Rights Acts. Brown v. GSA, 425 U. S. 820, 833 (1976).

It is clear that such overlap as may exist between Title VII and § 1985 (3) occurs only because the latter is directed at a discrete and particularly disfavored form of discrimination, and examination of § 1985 (3) shows that it constitutes a compatible and important supplement to the more general prohibition and remedy provided in Title VII. Thus, while it may be that in many cases persons seeking redress under *392 § 1985 (3) also have a claim directly under Title VII, 10 this is not sufficient reason to deprive those persons of the right to sue for the compensatory and punitive damages to which they are entitled under the post-Civil War statute. 11

As previously indicated, the majority’s willingness to infer a silent repeal of § 1985 (3) is based on its view that the provision only gives a remedy to redress deprivations prohibited by other federal law. But this narrow view of § 1985 (3) is incorrect even as to § 1985 (3) plaintiffs themselves denied Title VII rights. Because only conspiracies to deprive persons of federal rights are subject to redress under § 1985 (3), that statute, like 18 U. S. C. § 241 , 12 is itself a prohibition separate and apart from the prohibitions stated in the underlying provisions of federal law. Moreover, only those deprivations imbued with “invidiously discriminatory motivation” amounting to “class-based . . . animus,” Griffin v. Breckenridge, supra,, at 102 , are encompassed by § 1985 (3). Viewed in this manner, the right guaranteed by § 1985 (3) is the right not to be subjected to an invidious conspiracy to deny other federal rights. This discrete category of deprivations to which § 1985 (3) is directed stands in sharp contrast to the broad prohibition on discrimination provided in § 703 (a) of Title VII, see n. 2, supra; Griggs v. Duke Power Co., 401 U. S. 424 (1971). If, as the majority suggests, it would not recognize an implied repeal of an earlier statute granting a separate but overlapping right, then it should not do so in this case; for respondent has alleged a violation of § 703 (a) in a manner independently prohibited by § 1985 (3), and under the *393 majority’s approach should be allowed to redress both deprivations.

Even to the extent that § 1985 (3) is properly characterized as a “remedial” statute, there is no reason for holding it inapplicable to redress deprivations of Title VII rights. The majority’s apparent assumption that this Court has greater freedom in inferring repeal of remedial statutes than it does of statutes guaranteeing substantive rights has no support in our previous cases. The one instance in which we held Title VII’s remedies to be exclusive, Brown v. GSA, supra, was required because of the unmistakable legislative intent that alternative modes of redress were not to be available for a grievance relating to discrimination in federal employment. 13 Nor has the majority’s right/remedy distinction been enunciated in any of our cases recognizing that Congress did not intend Title VII to pre-empt all “alternative means to redress individual grievances,” Runyon v. McCrary, supra, at 174 n. 11, quoting 118 Cong. Rec. 3371 (1972) (Sen. Wil *394 liams) , 14 With respect to remedies as well as with respect to substantive rights, an implied repeal of post-Civil War civil rights legislation occurs only when the legislative scheme of the new statute is incompatible with the old.

In this case, Title VII and the remedial aspect of § 1985 (3) are entirely consistent, the latter clearly supplementing the former. Title VII operates both to create new federal rights and to provide a general remedy for the denial thereof, while § 1985 (3) operates to provide a separate remedy when the manner of denial is especially invidious and threatening. 15 The Reconstruction Congress that enacted § 1985 (3) believed that an especial danger was posed by persons acting with invidious animus and acting in concert — thereby compounding their power and resources 16 — to deny federal rights. Because such private conspiratorial action, the paradigm of which was the activity of the Ku Klux Klan, constituted a serious threat to civil rights and civil order, 17 it was deemed necessary to “giv[e] a civil action to anybody who shall be injured by [such] conspiracy.” 18 Thus, though it may be that those *395 who conspire with invidious motivation to violate § 703 (a) may in many cases also be reached under Title VII itself, there is no basis for inferring a silent repeal 19 of the legislative judgment that the distinct nature of the deprivation to which § 1985 (3) is directed warrants separate and more complete relief, and, accordingly, the Court has an obligation to honor the terms of that statute. 20

*396 Because respondent exhausted his administrative remedies under Title VII, see ante, at 369, there is no need in this case to reach the question whether persons whose Title VII rights have been violated may bring suit directly in federal court alleging an invidious conspiracy to deny those Title VII rights. I note, however, that the majority’s desire not to undercut the administrative enforcement scheme, including the encouragement of voluntary conciliation, provided by Title VII would be completely fulfilled by insisting that § 1985 (3) plaintiffs exhaust whatever Title VII remedies they may have. The concerns expressed in the majority opinion do not provide a basis for precluding redress altogether under § 1985 (3).

Title 42 U. S. C. § 1985 (3) (1976 ed., Supp. II) provides in relevant part that when persons who “conspire ... for the purpose of depriving . . . any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; ... do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, . . . the party so injured or deprived may have an action for the recovery of damages occasioned by such injury . . . , against any one or more of the conspirators.”

42 II. S. C. §2000e-2 (a). This statute provides:

“It shall be an unlawful employment practice for an employer—

“(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”

42 U. S. C. § 2000e-3 (a). This statute provides:

“It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor orga *387 nization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”

See ante, at 372 (“The primary question in the present case, therefore, is whether a person injured by a conspiracy to violate § 704 (a) of Title VII of the Civil Rights Act of 1964 is deprived of 'the equal protection of the laws, or of equal privileges and immunities under the laws’ within the meaning of § 1985 (3)”). See also ante, at 377 (“The only question here, therefore, is whether [the right Novotny claims under §704 (a)] may be asserted within the remedial framework of § 1985 (3) ”). (Emphasis deleted.)

The majority opinion does not reach the issue whether § 1985 (3) encompasses federal statutory rights other than those proceeding in “fundamental” fashion from the Constitution itself. I am not certain in what *389 manner the Court conceives of sex discrimination by private parties to proceed from explicit constitutional guarantees. In any event, I need not pursue this issue because I think it clear that § 1985 (3) encompasses all rights guaranteed in federal statutes as well as rights guaranteed directly by the Constitution. As originally introduced, § 2 of the Civil Rights Act of 1871, 17 Stat. 13 , encompassed “rights, privileges, or immunities . . . under the Constitution and laws of the United States.” Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871). The substitution of the terms “the equal protection of the laws” and “equal privileges and immunities under the laws,” see n. 1, supra, did not limit the scope of the rights protected but added a requirement of oertain “class-based, invidiously discriminatory animus behind the conspirators’ action,” Griffin v. Breckenridge, 403 U. S. 88, 102 (1971). We have repeatedly held that 18 U. S. C. §241 (derived from §6 of the Civil Rights Act of 1870, 16 Stat. 141 ), which is the “closest remaining criminal analogue to § 1985 (3),” Griffin v. Breckenridge, supra, at 98 , encompasses all federal statutory rights. See United States v. Waddell, 112 U. S. 76 (1884); In re Quarles, 158 U. S. 532 (1895); United States v. Mosley, 238 U. S. 383, 387-388 (1915); United States v. Price, 383 U. S. 787, 800 (1966); United States v. Johnson, 390 U. S. 563, 565-566 (1968). Similarly, we have stated that 42 U. S. C. § 1983 , derived from § 1 of the 1871 Civil Rights Act, encompasses federal statutory as well as constitutional rights. Edelman v. Jordan, 415 U. S. 651, 675 (1974); Rosado v. Wyman, 397 U. S. 397 (1970). See generally Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 646 (1979) (White, J., concurring in judgment).

Although Griffin v. Breckenridge, supra, at 102 n. 9, did not reach the issue whether discrimination on a basis other than race may be vindicated under § 1985 (3), the Court correctly assumes that the answer to this question is “Yes.” The statute broadly refers to all privileges and immunities, without any limitation as to the class of persons to whom these rights may be granted. It is clear that sex discrimination may be sufficiently invidious to come within the prohibition of § 1985 (3), see infra, at 392. See generally Califano v. Goldfarb, 430 U. S. 199 (1977); Reed v. Reed, 404 U. S. 71 (1971); Mathews v. Lucas, 427 U. S. 495, 506 (1976).

This is analogous to United States v. Johnson, supra, where the basis for a prosecution under 18 U. S. C. § 241 was a conspiracy to deny the substantive right to equality in public accommodations guaranteed under Title II of the Civil Rights Act of 1964, 42 U. S. C. § 2000a.

See Chapman v. Houston Welfare Rights Organization, 441 U. S., at 602 ; id., at 623 (Powell, J., concurring); id., at 646 (White, J., concurring in judgment); id., at 672 (Stewart, J., dissenting).

Section 706 (b) of Title VII, 42 U. S. C. § 2000e-5 (b), contemplates suit only "on or behalf of . . . person [s] . . . aggrieved” under § 703 or §704.

It is, of course, theoretically possible that an individual could be injured by a conspiracy to violate his Title VII rights even though that conspiracy was never brought to fruition and thus there was no violation of Title VII itself.

Title VII authorizes only equitable relief, including backpay for a period not to exceed two years. See § 706 (g), 42 U. S. C. § 2000e-5 (g).

See nn. 5, 7, supra.

The Court asserts, ante, at 378, that its holding is required for “the same basic reasons that underlay the Court’s decision in Brown v. GSA,” as reinforced by the consideration that § 1985 (3) is assertedly purely remedial. But the majority opinion utterly fails to explain in what way the basis for the decision in Brown — clear congressional intent — is applicable in this ease. Brown concerned the peculiar legislative context in which the extension of Title VII to federal employment was enacted, stressing that Congress was under the impression that there was at that time (1972) no other effective judicial remedy for federal discriminatory action. By contrast, this case concerns private discrimination which, of course, has been encompassed by Title VII since the original enactment of the Civil Rights Act in 1964. Brown expressly reaffirmed the conclusion of our previous cases that with respect to private employment, “the explicit legislative history of the 1964 Act . . . ’manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes,’ ” Brown v. GSA, 425 U. S., at 833 , quoting Johnson v. Railway Express Agency, 421 U. S. 454, 459 (1975); Alexander v. Gardner-Denver Co., 415 U. S. 36, 48 (1974).

See cases cited in n. 13, supra; Runyon v. McCrary, 427 U. S., at 174-175 .

Because § 1985 (3) refers to all federal rights, it is irrelevant that the particular right sought to be vindicated thereunder was not in existence at the time the cause of action was enacted. Cf. Hagans v. Lavine, 415 U. S. 528 (1974); Rosado v. Wyman, 397 U. S. 397 (1970) (cause of action under § 1983 to vindicate right under subsequently enacted statute); United States v. Johnson, 390 U. S. 563 (1968) (prosecution under 18 U. S. C. § 241 for violation of subsequently enacted statute); see also United States v. Waddell, 112 U. S. 76 (1884).

Cf. Callanan v. United States, 364 U. S. 587, 593-594 (1961); Krulewitch v. United States, 336 U. S. 440, 448-449 (1949) (Jackson, J., concurring); Pinkerton v. United States, 328 U. S. 640, 654 (1946).

See Monell v. New York City Dept. of Social Services, 436 U. S. 658, 665 , and n. 11 (1978); Griffin v. Breckenridge, 403 U. S., at 99-102 .

Cong. Globe, 42d Cong., 1st Sess., 568 (1871) (Sen. Edmunds). The passage from which this remark is excerpted is also instructive:

“The second section, it will be observed, only provides for the punish *395 ment of a conspiracy. It does not provide for the punishment of any act done in pursuance of the conspiracy, but only a conspiracy to deprive citizens of the United States, in the various ways named, of the rights which the Constitution and the laws of the United States made pursuant to it give to them; that is to say, conspiracies to overthrow the Government, conspiracies to impede the course of justice, conspiracies to deprive people of the equal protection of the laws, whatever those laws may be. It does not provide, as I say, for any punishment for any act which these conspirators shall do in furtherance of the conspiracy. It punishes the conspiracy alone, leaving the States, if they see fit, to punish the acts and crimes which may be committed in pursuance of the conspiracy. I confess that I thought myself it was desirable, to make the bill complete, to make it completely logical and completely effective, that a section should have been added providing not only for punishing the conspiracy, but providing also in the same way for punishing any act done in pursuance of the conspiracy. This section gives a civil action to anybody who shall be injured by the conspiracy, but does not punish an act done as a crime.” Ibid.

The majority recognizes that Congress has explicitly noted that Title VII does not pre-empt redress of grievances under 42 U. S. C. § 1981 and 42 U. S. C. § 1983 , ante, at 377 n. 21. See H. R. Rep. No. 92-238, p. 19 (June 2, 1971); S. Rep. No. 92-415, p. 24 (Oct. 28, 1971). This Court did not resurrect § 1985 (3), Griffin v. Breckenridge, supra (June 7, 1971), from its interment under Collins v. Hardyman, 341 U. S. 651 (1951), until one week after the House Report was filed; neither Report mentions § 1985 (3), nor does the Senate Report mention Griffin .

Petitioners argue that neither the Thirteenth Amendment, the Fourteenth Amendment, nor the Commerce Clause grants Congress authority to reach private conspiracies to deny Title VII rights such as are involved in this case. But petitioners do not dispute that the Commerce Clause is the source of authority for the enactment of Title VII, and Congress needs no additional grant of authority to prohibit, and provide a remedy for, invidious conspiracies to deny such rights.