Respondents Brief — Occidental Life Insurance v. Equal Employment Opportunity Commission

Supreme Court brief1977

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INDEX

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PITRE TDN. SAA ATESIN NS OPT Te RO FO

Questions presented set alt AN i

Statutory provision eae AE Re ele

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Summary of ergument —......__..__.....

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I. Title VII of the Civil Rights Act of

1964 Permits the Equal Employment

Opportunity Commission to bring an

enforcement action within more than

180 days after the filing of the under-

lying charge of iiestonatanai discrimi-

A. By its terms, the statute imposes

no period of limitation on the Com-

mission’s enforcement actions _____.

B. The statutory purpose confirms

that no limitation on the Commis-

sion’s right to sue was intended.

II. Commission enforcement actions are

not subject to state statutes of limita-

Re RSE eee ee

TS aN ee ee Oe ee Re Ce ;

CITATIONS

Cases:

Air Line Stewards and Stewardesses

Assn, Local 550 v. American Airlines,

Inc., 455 F.2d 101, certiorari denied,

Ie I PU ns eeneinccdipehionatpetionn

ia: saa alk a

“ Cases—Continued Page

Cases—Continued Page Equal Employment Opportunity Commis-

Albemarle Paper Co. v. Moody, 422 U.S. sion v. Griffin Wheel Co., 511 F.2d 564,

CES Ses ee ace nena ee 9, 35, 36 affirmed on rehearing, 521 F.2d 223 35, 36

Alexander v. Gardner-Denver Co., 415 Equal Employment Opportunity Commis-

I tied 5, 9, 35 sion v. Hickey-Mitchell Co., 507 F.2d

Bayport Fabricating, Inc. v. Equal Em-

ployment Opportunity Commission, 3

FEP Cases 520 .. lie 17

Board of Commissioners of “Jackson

County v. United States, 308 U.S. 343.. 38

Braddy v. Southern Bell Telephone &

Telegraph Co., 458 F.2d 666 - 11

Cunningham v. Litton Industries, 413 F. |

ERIS NEE ls GE SSC ORES 17

E. I. Dupont de Nemours & Co. v. Davis,

SE WG I ate 20

Equal Employment Opportunity Commis-

sion v. Bartenders Int’l Union, Local

4s, Se 5. eee oe 25

Equal Employment Opportunity Commis-

sion Vv. Christianburg Garment Co.,

Inc., 376 F. Supp. 1067 - 28

Equal "Employment Opportunity ‘Commis-

sion v. Cleveland Mills Co., 502 F.2d

153, certiorari denied, 400 US. 946. 138, 16,

19, 23, 29, 30

Equal Employment Opportunity Commis-

sion v. Container Corp. of America,

352 F. Supp. 262 - 15

Equal Employment Opportunity Commis-

sion v. Duval Corp., 528 F.2d 945 _ 6, 13, 15

Equal Employment Opportunity Commis-

sion v. E. I. duPont de Nemours and

—'- 2) | 2

944 - 14, 26, 32

Equal Employment Opportunity Commis-

sion v. Kimberly-Clark Corp., 511 F.2d

1352, certiorari denied, 423 U.S. 994 _. 13, 22,

23, 28, 29, 35, 38, 39

Equal Employment Opportunity Commis-

sion v. Louisville & Nashville R. Co.,

505 F.2d 610, certiorari denied, 423

U.S. 824 18, 18, 19, 21, 24, 28

Equal Employment Opportunity Commis-

sion v. Meyer Brothers Drug Co., 521

I I hick stains tes setenigaltdardtenaiaciniadhds 13

Franks v. Bowman Transportation Co.,

424 U.S. 747 .- aoe SF

Holmberg v. Armbrecht, 327 U. S. 392 30

Johnson v. Railway Express Agency, Inc.,

Re PRI a eer a 30

Love v. Pullman Co., 404 U.S. 522... 3, 29

McAllister v. Magnolia Petroleum Co.,

357 U.S. 221 ___.. 33

McDonnell Douglas Corp. | v. . Green, 4ll

US. 792 . 27

Nabors v. ‘National Labor Relations

Board, 323 F.2d 686 . 34

Nathanson v. National Labor ‘Relations

Board, 344 U.S. 25 - 36

National Licorice Co. v. National Labor

Relations Board, 309 U.S. 350. 34

Patterson v. American Tobacco Co., 535

F.2d 257 _ “ ...15, 19, 25-26, 32, 33

Cases—Continued

Runyon v. McCrary, 427 U.S. 160 _...

Trbovich v. United Mine Workers, 404

Ch FD sta denisctinscttblhinssincctenisitinnabie

Tuft v. McDonnell Douglas Corp., 617 F.

| RE Peeeeno P nieen eee nae eR AT

United States v. Allegheny-Ludlum In-

dustries, Inc., 517 F.2d 826 .. Ne

United States v. Beebe, 127 U.S. 338.

United States v. De Queen and Eastern

‘Railroad Co., 271 F.2d 597 .

United States v. Minnesota, 270 ‘US.

181 -

United ‘States v. . Nashville, “Chattanooga

& St. Louis Railway Co., 118 U.S. 120.

United States v. Summerlin, 310 U.S.

GA | «i. sndicitcidsniblannciabiihattiicsliianecsslae maaan

United States v. Thompson, 98 U. S. 486 -

Statutes and regulation:

Civil Rights Act of 1964, 78 Stat. 241, as

amended, 42 U.S.C. (and Supp. V)

2000a et seq.:

Title II, 78 Stat. 243 et seq., 42

U.S.C. 2000a et seq. -

Title III, 78 Stat. 246° et “8eq., “42

U.S.C. 2000b et seq. .

Title VII, 78 Stat. 253, “42 U.S.C.

2000e et seq. -

Section 706, 42 U.S.C. _ (1970

ed.) 2000e-5 .

Section 706, 42 U.S.C. (Supp.

2 Re.

8, 31

Statutes and regulation—Continued

Section 706(b), 42 U.S.C.

Page

(Supp. V) 2000e-5(b) .. 12, 18, 27

Section 706(e), 42 U.S.C.

(Supp. V) 2000e-5(e) . 18

Section 706(e), 42 U.S.C. (1970

ed.) 2000e-5(e) _... 10-11, 16

Section 706(f), 42 U.S.C. (1970

ed.) 2000e-5(f) 5

Section 706(f), 42 U.S.C.

(Supp. V) 2000e-5(f) .... 16, 32

Section 706(f)(1), 42 U.S.C.

(Supp. V) 2000e-5(f) (1) assim

Section 70€(f)(2), 42 U.S.C.

(Supp. V) 2000e-5(f) (2). 15, 18

Section 706(f)(5), 42 U.S.C.

(Supp. V) 2000e-5(f) (5). 18

Clayton Antitrust Act, Section 4B, as

added, 69 Stat. 283, 15 U.S.C. 15b 38

Pub. L. 92-261, Section 14, 86 Stat. 113 28

42 U.S.C. 1988 31

California Code of Civil Procedure § 340

(3) (West 1954) . APSE ae 5

29 C.F.R. 1601.25a (1968) 17

Miscellaneous:

BNA Daily Labor _— No. 14 i

ary 20, 1977) _ anda 24

118 Cong. Rec. (1972) :

» ie .......... 21

i i ee 21

EEE 21

p. 7168 __ —

* >So _ 11, 23

Miscellaneous—Continued Page

81 Fed. Reg. 14255 .. 17

H.R. Rep. No. 92-238, “92d Cong., be ‘Ast

Sess. (1971) . ri 7, 11, 20, 24, 35

Legislative History of the ‘Equal Employ-

ment Opportunity Act of 1972, pre-

pared by the Subcommittee on Labor of

the Senate Committee on Labor and

Public Welfare, 92d Cong., 2d Sess.

(Committee Print, 1972) .....11, 12, 19, 20, 21,

22, 23, 24, 26, 35

Note, A Limitation on Actions for De-

privation of Federal Santi 68 Colum.

L. Rev. 763 (1968) .. as 34

S. 2515, 92d Cong., 1st Sess. (1971) 6, 17

S. Rep. No. $2-415, 92d Cong., 1st Sess.

(1971) CAE a ee ene .... .19, 24, 26

Iu the Supreme Court of the Ruited States

OcTOBER TERM, 1976

No. 76-99

OCCIDENTAL LIFE INSURANCE COMPANY

OF CALIFORNIA, PETITIONER

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

OPINIONS BELOW

The opinion of the court of appeals (A. 25-43) is

reported at 535 F. 2d 533. The district court’s opin-

ion (A. 19-24) is not officially reported but is un-

officially reported at 12 FEP Cases 1298.

JURISDICTION

The judgment of the court of appeals was entered

on May 11, 1976. The petition for a writ of certio-

rari was filed on July 23, 1976, and was granted on

(1)

December 18, 1976. The jurisdiction of this Court

rests on 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether Title VII of the Civil Rights Act of

1964 permits the Equal Employment Opportunity

Commission to bring an enforcement action more

than 180 days after the filing of the underlying

charge of employment discrimination.

2. Whether an enforcement action brought by the

Commission is subject to state statutes of limitations.

STATUTORY PROVISION INVOLVED

Section 706(f)(1) of Title VII of the Civil Rights

Act of 1964, 78 Stat. 253, as amended, 42 U.S.C.

(Supp. V.) 2000e-5(f) (1), provides in pertinent part:

If within thirty days after a charge is filed with

the Commission or within thirty days after ex-

piration of any period of reference under sub-

section (c) or (d) of this section, the Commis-

sion has been unable to secure from the respondent

a conciliation agreement acceptable to the Com-

mission, the Commission may bring a civil action

against any respondent not a government, govern-

mental agency, or political subdivision named in

the charge * * *. If a charge filed with the Com-

mission pursuant to subsection (b) of this sec-

tion is dismissed by the Commission, or if with-

in one hundred and eighty days from the filing of

such charge or the expiration of any period of

reference under subsection (c) or (d) of this

section, whichever is later, the Commission has

not filed a civil action under this section * * * or

the Commission has not entered into a conciliation

agreement to which the person aggrieved is a

party, the Commission * * * shall so notify the

person aggrieved and within ninety days after

the giving of such notice a civil action may be

brought against the respondent named in the

charge (A) by the person claiming to be aggrieved

STATEMENT

In February 1974, the United States Equal Em-

ployment Opportunity Commission, pursuant to its

enforcement powers under Section 706(f)(1) of the

Civil Rights Act of 1964, as amended, 42 U.S.C.

(Supp. V) 2000e-5(f)(1), filed suit against peti-

tioner, charging unlawful sex discrimination in vari-

ous employment practices (A. 9-12). The Commis-

sion sought both an injunction against sexually dis-

criminatory employment practices and back pay for

persons who had been adversely affected by such prac-

tices (A. 12).

The Commission’s suit was based on a charge

Tamar Edelson had filed with its San Franc‘sco,

California, District Office on March 9, 1971 (A. 5-

6).' At the time the charge was filed, the San Fran-

cisco Office had eight investigators on its staff and

approximately 1000 charges pending before it (A.

*The charge was first lodged with the Commission in De-

cember 1970 (A. 3). It was then referred to the appropriate

state agency for consideration. It was subsequently referred

back to the Commission and formally filed at that time. See

Love V. Pullman Co., 404 U.S. 522.

6).° Investigation of the charge was commenced by

service of the charge on petitioner on August 16,

1971 (ibid.). The Commission served proposed find-

ings of fact on petitioner on February 25, 1972, and

petitioner filed exceptions to them on March 23, 1972

(ibid.). :

On July 18, 1972, the Commission invited petition-

er to participate in conciliation discussions; peti-

tioner entered into such discussions, and the Commis-

sion stayed its ruling pending their outcome (ibid.).

On October 20, 1972, these initial conciliation efforts

were deemed unsuccessful, and on February 2, 1973,

the Commission determined that there was reason-

able cause to believe complainant Edelson’s charge

(ibid.).

On February 26, 1973, and March 20, 1973, peti-

tioner requested further conciliation discussions (A.

7). Such discussions continued until July 9, 1973

(ibid.). On September 18, 1973, the Commission de-

termined that the further conciliation efforts had

failed, and it so notified petitioner (ibid.). At this

time, complainant Edelson requested that the case be

referred to the Commission’s General Counsel to

bring an enforcement action (‘bid.).°

? The facts recited are taken from an affidavit by the Com-

mission submitted in the district court, which the court neces-

sarily accepted in ruling on petitioner’s motion for summary

judgment (see A. 19).

*It appears that complainant Edelson was never formally

notified of her right to bring suit herself (A. 7).

On February 22, 1974, the Commission filed an

enforcement action in the United States District

Court for the Central District of California (A. 9).

The district court dismissed the complaint on the

ground that Section 706(f)(1) requires that any

enforcement action be brought within 180 days of the

filing of the charge with the Commission (A. 21).

Alternatively, the court held that the Commission’s

enforcement action was subject to state statutes of

limitations and consequently was barred by the one-

year limitation period of the California Code of Civil

Procedure § 340(3) (West 1954) (A. 21-22).

The court of appeals reversed, hoiding both that

the Commission’s power to bring suit does not lapse

upon the expiration of 180 days from the filing of a

charge (A. 27-28) and that the Commission’s en-

forcement actions are not subject to state statutes of

limitations (A. 29-38).

SUMMARY OF ARGUMENT

In 1972, Congress amended Section 706(f) of

the Civil Rights Act of 1964 to grant the Equal

Employment Opportunity Commission statutory au-

thority to bring civil actions to enforce private rights

against unlawful employment discrimination. See

Alexander v. Gardner-Denver Co., 415 U.S. 36, 44.

In amending the Act, Congress preserved the exist-

ing private right of action by providing that “if

within one hundred and eighty days from the filing

of [the] charge of [employment discrimination] * * *

the Commission has not filed a civil action under this

section * * *, a civil action may be brought against

the respondent named in the charge * * * by the per-

son claiming to be aggrieved * * *.” Section 706(f)

_ (1) of the Act. Petitioner’s principal argument is

that this provision imposes a limitation on the Com-

mission’s right to bring an enforcement action.

A. By its terms, the statute imposes no period of

limitation on the Commission’s right to sue. The

only congitions placed upon the Commission’s enforce-

ment actions are preconditions: more than 30 days

must have passed after the charge was filed, and the

Commission must have been unable to obtain an ac-

ceptable conciliation agreement. “The statute con-

tains no other restrictions, either express or implied.”

Equal Employment Opportunity Commission v. Duval

Corp., 528 F. 2d 945, 947 (C.A. 10).

The 180-day provision upon which petitioner relies

is merely a temporary bar to institution of a private

action; it places no limitation or prohibition on the

later institution of enforcement actions by the Com-

mission. Indeed, Congress rejected a proposal that

would have terminated the Commission’s authority to

act with respect to a charge after the expiration of

the 180-day period. S. 2515, 92d Cong., Ist Sess.

(1971). When Congress has established time con-

straints in Title VII, it has done so in clear, precise,

and unambiguous language. “The very absence of an

explicit Commission limitation, in the face of an ex-

press private limitation, strongly suggests that Con-

gress did not intend that EEOC actions be governed

by the limitation period.” Equal Employment Op-

portunity Commission v. E.1. duPont de Nemours and

Co., 516 F. 2d 1297, 1800 (C.A. 8).

B. A period of limitation should not be inferred

if it is not explicit, for such a limitation would be

in conflict with the overriding legislative concern for

vindication of private rights against employment dis-

crimination. Congress intended aggrieved individuals

to be able to elect between private litigation and

Commission enforcement actions. A 180-day limita-

tion on actions brought by the Commission would de-

prive such individuals of that choice and would ter-

minate the Commission’s enforcement authority for

failure to meet a timetable that Congress knew to

be incompatible with the Commission’s workload and

limited resources. See H.R. Rep. No. 92-238, 92d

Cong., 1st Sess., p. 12 (1971).

Because of the heavy volume of charges and the

time required for conciliation, the Commission often is

unable to complete conciliation within 180 days. If the

sanction of litigation is terminated after 180 days,

the Commission’s ability to conduct effective concilia-

tion would be largely nullified.

Moreover, if the Commission is barred from bring-

ing suit after 180 days, thousands of complainants

would be forced to bring suit themselves in order to

vindicate their rights under the Act. It was to avoid

this result that Congress granted the Commission

litigation enforcement powers in the first place, for

many complainants are poor and unable to afford legal

representation.

Enforcement actions brought by the Commission

are not subject to state statutes of limitations. Where

the federal government exercises the right to sue

under a federal statute, such suits are subject to

state statutes of limitations only where the clear

congressional intent requires that result. United

States v. Nashville, Chattanooga & St. Louis Rail-

way Co., 118 U.S. 120, 125. Since neither the terms

of Title VII nor its legislative history indicate an

intent that state statutes of limitations govern Com-

mission enforcement efforts, this action is not subject

to state-imposed time limitations.

The application of state statutes of limitations

would jeopardize efforts at conciliation, encourage

premature litigation, and thwart the underlying

statutory purpose of eradicating discrimination in

employment. Applicability of a statue of limitation

could lead recalcitrant employers to prolong con-

ciliation past the point at which either the Commis-

sion or complainants could bring suit. To protect

themselves, complainants would be forced to bring

suits prematurely, while potentially fruitful concili-

ation efforts continued. In many cases, their inabili-

ty to maintain a lawsuit would frustrate vindica-

tion of their statutory rights.

The public interest character of the Commission’s

enforcement actions precludes application of state

statutes of limitations. Cf. United States v. Sum-

merlin, 310 U.S. 414; Trhovich v. United Mine Work-

ers, 404 U.S. 528. A suit to enforce Title VII rights

involves “ ‘the vindication of a major public interest.’ ”

Franks v. Bowman Transportation Co., 424 U.S. 747,

778 n. 40. Title VII back pay awards are an inte-

gral part of the statutory relief scheme and also par-

take of this public character. See Albemarle Paper

Co. v. Moody, 422 U.S, 405, 417-419. Therefore,

whether the relief sought is back pay or an injunc-

tion, when the Commission sues to enforce Title VII

it is acting as the sovereign in attempting to promote

the public interest and is immune from state limita-

tions periods.

ARGUMENT

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

PERMITS THE EQUAL EMPLOYMENT OPPORTUN-

ITY COMMISSION TO BRING AN ENFORCEMENT

ACTION MORE THAN 180 DAYS AFTER THE FIL-

ING OF THE UNDERLYING CHARGE OF EMPLOY-

MENT DISCRIMINATION

The purpose and history of Title VII of the Civil

Rights Act of 1964, 78 Stat. 2538, as amended,

42 U.S.C. 2000e et seg., were concisely summarized

by this Court in Alexander v. Gardner-Denver Co.,

415 U.S. 36, 44:

Congress enacted Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq., to assure

equality of employment opportunities by elimi-

nating those practices and devices that discrimi-

nate on the basis of race, color, religion, sex, or

national origin. McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 800 (1973); Griggs v.

Duke Power Co., 401 U.S. 424, 429-430 (1971).

Cooperation and voluntary compliance were se-

lected as the preferred means for achieving this

goal. To this end, Congress created the Equal

Employment Opportunity Commission and estab-

lished a procedure whereby existing state and

local equal employment opportunity agencies, as

well as the Commission, would have an oppor-

tunity to settle disputes through conference, con-

ciliation, and persuasion before the aggrieved

party was permitted to file a lawsuit. In the

Equal Employment Opportunity Act of 1972,

Pub. L. 92-261, 86 Stat. 108, Congress amended

Title VII to provide the Commission with fur-

ther authority to investigate individual charges

of discrimination, to promote voluntary compli-

ance with the requirements of Title VII, and to

institute civil actions against employers or un-

ions named in a discrimination charge.

The 1972 amendment to which the Court referred,

granting the Commission statutory authority to

bring enforcement actions in federal district courts,

is now incorporated in Section 706(f) (1) of the Act,

.42 U.S.C. (Supp. V) 2000e-5(f)(1). Prior to the

amendment, the role of the Commission in eliminat-

ing employment discrimination had been limited, as

this Court noted, to that of conferee, conciliator, and

persuader. If conciliation failed, the party alleging

discrimination, but not the Commission, was empow-

ered to bring a civil action to enforce the statutory

right against discrimination. See Section 706(e) of

the Act, 42 U.S.C. (1970 ed.) 2000e-5(e). The Com-

mission had no right even to intervene in such actions.

Braddy v. Southern Bell Telephone & Telegraph Co.,

458 F.2d 666 (C.A. 5); Air Lines Stewards and Stew-

ardesses Assn, Local 550 v. American Airlines, Inc.,

455 F. 2d 101 (C.A. 7), certiorari denied, 416 U.S.

993.

In 1972 Congress determined that this exclusive

reliance upon conciliation and private litigation had

proven unsatisfactory, and it concluded that the Com-

mission had been “ineffective due directly to its in-

ability to enforce its findings.” H.R. Rep. No. 92-238,

92d Cong., 1st Sess., p. 5 (1971) (Legislative History

at 65).* Accordingly, Section 706 was amended to

authorize the Commission to institute civil litigation

on behalf of individuals charging unlawful employ-

ment discrimination. But Congress intended that

this power would be exercised only as a last resort:

“Tojnly if conciliation proves to be impossible do we

expect the Commission to bring action in Federal

district court to seek enforcement.” 118 Cong. Rec.

7563 (1972) (Legislative History at 1856). Thus

the 1972 amendment enlarged the Commission’s pow-

ers without lessening its responsibility to investigate

individual complaints and to attempt to resolve such

complaints through conciliation.

* “Legislative History” refers to the Legislative History of

the Equal Employment Opportunity Act of 1972, prepared by

the Subcommittee on Labor of the Senate Committee on Labor

and Public Welfare, 92d Cong., 2d Sess. (Committee Print,

1972).

The various responsibilities of the Commission are

made explicit in Section 706. The Commission is re-

quired to investigate all charges of employment dis-

crimination, and “if the Commission determines after

such investigation that there is reasonable cause to

believe that the charge is true, the Commission shall

endeavor to eliminate any such unlawful employment

practice by informal methods of conference, concilia-

tion and persuasion.” Section 706(b). “If * * * the

Commission has been unable to secure from the re-

spondent a conciliation agreement acceptable to the

Commission, the Commission may bring a civil ac-

tion * * *.” Section 706(f) (1).

Having armed the Commission with this twin man-

date to conciliate where possible and litigate where

necessary, Congress “hoped that recourse to the pri-

vate lawsuit will be the exception and not the rule,

and that the vast majority of complaints will be

handled through the offices of the EEOC or the At-

torney General as appropriate.” 118 Cong. Rec. 7168

(1972) (Legislative History at 1847). Congress pre-

served the private right of action, however, by pro-

viding that “if within one hundred and eighty days

from the filing of [the] charge [of employment dis-

crimination] * * * the Commission has not filed a

civil action under this section * * *, a civil action

may be brought against the respondent named in the

charge * * * by the person claiming to be aggrieved

** *” Section 706(f) (1).

Petitioner’s principal argument (Br. 18-34) is

that this statutory language imposes a limitation on

the Commission’s right to bring its own enforcement

action: petitioner asserts that the Commission must

bring its action within 180 days or not at all. Every

court of appeals that has addressed this issue has held

to the contrary.’ As we now show, neither the lan-

guage of the statute nor its evident purposes are con-

sistent with so stringent a limitation as petitioner

would have this Court impose on the Commission’s

ability to provide effective enforcement of Title VII.

A. By Its Terms, The Statute Imposes No Period Of

Limitation On The Commission’s Enforcement Actions

Section 706(f)(1) of the Act contains two direc-

tives, one addressed to civil actions brought by the

aggrieved party and the other to actions brought by

the Commission. The statute first addresses the power

of the Commission to sue:

’ Equal Employment Opportunity Commission v. E. I. du-

Pont de Nemours and Co., 516 F.2d 1297 (C.A. 3); Equal

Employment Opportunity Commission v. Cleveland Mills Co.,

502 F.2d 158 (C.A. 4), certiorari denied, 420 U.S. 946; Equal

Employment Opportunity Commission v. Louisville & Nash-

ville R. Co., 505 F.2d 610 (C.A. 5), certiorari denied, 423

U.S. 824; Equal Employment Opportunity Commission Vv.

Kimberly-Clark Corp., 511 F.2d 1352 (C.A. 6), certiorari

denied, 423 U.S. 994; Equal Employment Opportunity Com-

mission V. Meyer Brothers Drug Co., 521 F.2d 1364 (C.A. 8) ;

Equal Employment Opportunity Commission v. Duval Corp.,

528 F.2d 945 (C.A. 10).

“If within thirty days after a charge is filed with

the Commission * * * the Commission has been

unable to secure from the respondent a concilia-

tion agreement acceptable to the Commission, the

Commission may bring a civil action against any

respondent not a government, governmental

agency or political subdivision named in the

charge.”

This language, read in isolation, might suggest that

the Commission may bring suit at any time after

the expiration of 30 days after the filing of the charge,

i.e., that the only statutory condition placed upon the

Commission’s right to sue is that 30 days pass with-

out a conciliation agreement being entered into. But

the lower federal courts uniformly have concluded

that the Commission’s right to sue under Section

706(f) (1) must be considered in light of the Com-

mission’s affirmative obligation, under Section 706(b),

to serve notice of the charge, to investigate to deter-

mine whether there is reasonable cause to believe

the charge is true, and to attempt to eliminate alleged

unlawful employment practices by informal methods

of conference, conciliation, and persuasion. “ “The

Commission’s power of suit and administrative process

[are not] unrelated activities, [but] sequential steps

in a unified scheme for securing compliance with Title

VII.’ ” Equal Employment Opportunity Commission

v. Hickey-Mitchell Co., 507 F. 2d 944, 948 (C.A. 8).

These courts therefore have held that a suit brought

by the Commission before discharging its responsi-

bility to investigate and attempt conciliation is pre-

mature. See, e.g., Patterson vy. American Tobacco Co.,

535 F. 2d 257, 272 (C.A. 4); United States v. Al-

legheny-Ludlum Industries, Inc., 517 F. 2d 826, 869

(C.A. 5); Equal Employment Opportunity Commis-

sion v. Container Corp. of America, 352 F. Supp 262,

265 (M.D. Fla.).

Thus Section 706(f) (1) has been read as imposing

two independent conditions on the Commission’s au-

thority to initiate litigation: (1) that more than 30

days must have elapsed from the filing of the charge

underlying the suit* and (2) that the Commission

has been unable to obtain an acceptable conciliation

agreement from the respondent. No other conditions

or limitations are placed on the Commission’s power

to sue. “The statute contains no other restrictions,

either express or implied.” Equal Employment Op-

portunity Commission v. Duval Corp., 528 F. 2d 945,

947 (C.A. 10).

Section 706(f)(1) further establishes a qualified

private right of action:

If a charge filed with the Commission pursuant

to subsection (b) is dismissed by the Commis-

sion, or if within one hundred and eighty days

from the filing of such charge or the expiration

of any period of reference under subsection (c)

or (d), which ever is later, the Commission has

not filed a civil action under this section * * *

or the Commission has not entered into a con-

ciliation agreement to which the person aggrieved

is a party, the Commission * * * shall so notify

* Even during that initial period the Commission may seek

temporary relief. See Section 706(f) (2) of the Act.

the person aggrieved and within ninety days

after the giving of such notice a civil action may

be brought against the respondent named in the

charge * * * by the person claiming to be ag-

grieved * * *.

Private actions thus can be brought either when the

Commission has dismissed the charge or when the

Commission has failed to act within 180 days after

the filing of the charge. The statute “serves its ap-

parent purpose when it limits the time before which

a private action may not be filed and thus avoids

potentiak interference with the Commission in the

performance of its primary duties of conciliation and

enforcement.” Equal Employment Opportunity Com-

mission v. Cleveland Mills Co., 502 F. 2d 153, 156

(C.A. 4), certiorari denied, 400 U.S. 946. Thus the

180-day provision is merely a temporary bar to in-

stitution of a private action, imposed for the purpose

of affording a period of time within which investiga-

tion and conciliation may take place in a relatively

nonadversarial setting. By its terms, that provision

does not place any limitation or prohibition on the

institution of an enforcement action by the Commis-

sion at some later date.

The predecessor of Section 706(f), Section 706(e)

of the 1964 Act, also postponed the complainant’s

right to bring suit so that the Commission would

have some time to attempt to obtain voluntary com-

pliance before the matter was laid before a court.

Under former Section 706(e), the complainant was

required to wait only 30 days after filing charges be-

fore bringing suit. That 30-day period was never

viewed as the full measure of the Commission’s au-

thority to attempt conciliation. To the contrary, it

was recognized that the statute anticipated continu-

ing conciliation efforts by the Commission beyond the

30-day period. See 29 C.F.R. 1601.25a (1968), 31

Fed. Reg. 14255. See also Cunningham v. Litton In-

dustries, 413 F, 2d 887 (C.A. 9) ; Bayport Fabricating,

Inc. v. Equal Employment Opportunity Commission,

3 FEP Cases 520, 521 (S.D. Tex.). By the same

token, the extension of that period to 180 days cannot

be read as placing a limitation on the Commission’s

ability to exercise its statutory powers, which now in-

clude the authority to bring civil enforcement actions.

Indeed, Congress explicitly rejected a proposal that

would have imposed such a limitation. While Con-

gress was considering amendments to the Act in

1972, it had before it a proposal to give the Com-

mission power to issue cease-and-desist orders. Part

of the proposal would have terminated the Com-

mission’s authority to act with respect to a charge

upon the filing of a private action after expiration of

the 180-day period. S. 2515, 92d Cong., 1st Sess.

(1971). Thus Congress was aware that, in the ab-

sence of a specific prohibition, the Commission’s pow-

er to act continued beyond the 180-day period, and

even beyond the initiation of private litigation.

Congress had before it language that would have

changed that result, and it declined to adopt that

language. Nor did it adopt any equivalent expression

of a limitation on the power of the Commission. See

Equal Employment Opportunity Commission v. E. I.

duPont de Nemours and Co., supra, 516 F. 2d at

1300, n. 18; Equal Employment Opportunity Com-

mission v. Louisville & Nashville R. Co., 505 F. 2d

610, 615 (C.A. 5), certiorari denied, 423 U.S. 824.

On those occasions when Congress decided to es-

tablish time constraints, it did so in clear, precise,

and unambiguous language.’ As the Court of Ap-

peals for the Third Circuit pointed out in Equal Em-

ployment Opportunity Commission v, E. I. duPont

de Nemours and Co., supra, 516 F. 2d at 1300 (foot-

notes omitted) :

[W]hen Congress sought to impose specific time

limitations in other portions of Section 706 it

did so clearly: Charges are to be filed within

180 days of the alleged discriminatory occur-

rence; an employer is to be notified of the charge

within 10 days; an investigation is to be com-

7 Section 706(e) states unequivocally that “[a] charge un-

der this section shall be filed within one hundred and eighty

days * * *.” Section 706(b) requires that “the Commission

shall serve a notice of the charge * * * on such employer * * *

within ten days * * *.” Equally definite as to the time and

against whom it runs is a later part of the same statute

providing that “[t]he Commission shall make its deter-

mination on reasonable cause as promptly as possible and so

far as is practicable, not later than one hundred and twenty

days from the filing of the charge * * *.” Section 706(f)

(2) states that “[i]t shall be the duty of the court * * * to

assign cases for hearing at the earliest practicable date * * *.”

Section 706(f) (5) requires that “[i]f such judge has not

scheduled the case for trial within one hundred and twenty

days after issue has been joined, that judge may appoint a

master * * *.”

pleted within 120 days “so far as practicable”;

civil actions are to be expedited; a master can

be appointed if the case has not been scheduled

for trial within 120 days after issue has been

joined; and back pay liability is limited to two

years prior to the filing of the charge.

Section 706(f)(1) also provides only 90 days

after the Commission notifies the complainant of his

right to bring suit within which that right may be

exercised. No similar limitation is placed upon the

Commission’s authority to sue. “The very absence of

an explicit Commission limitation, in the face of an

express private limitation, strongly suggests that

Congress did not intend that EEOC actions be gov-

erned by the limitation period.” Equal Employment

Opportunity Commission v. E. I. duPont de Nemours

and Co., supra, 516 F. 2d at 1300. See also Equal

Employment Opportunity Commission v. Cleveland

Mills Co., supra, 502 F. 2d at 156; Equal Employment

Opportunity Commission v. Louisville & Nashville R.

Co., supra, 505 F. 2d at 613.

Full investigation and efforts at conciliation often

may extend beyond 180 days. See S. Rep. No. 92-

415, 92d Cong., 1st Sess., pp. 5-6, 87 (1971) (Legisla-

tive History at 414-415, 495). The Commission may

not bring suit unless it has been unable to secure an

acceptable conciliation agreement. Section 706(f)

(1); Patterson v. American Tobacco Co., supra.

Thus a 180-day period of limitation would bar

many Commission actions altogether. Moreover, Con-

gress cannot be assumed to have forced the Commis-

sion to choose between litigation and conciliation by

requiring the Commission to cease conciliation and

bring suit within 180 days or forego suit altogether.

See Equal Employment Opportunity Commission v.

E. I, duPont de Nemours and Co., supra, 516 F. 2d at

1300. Cf. EZ. I. Dupont de Nemours & Co. v. Davis,

264 U.S. 456.

B. The Statutory Purpose Confirms That No Limitation

On The Commission’s Right To Sue Was Intended

The overriding congressional concern in enacting

the 1972 amendments to the Act was “[w]hat pro-

cedures will ensure the most effective enforcement

of the substantive provisions of Title VII * * *.” H.R.

Rep. No. 92-238, 92d Cong., 1st Sess., p. 98 (1971)

(Legislative History at 118). Petitioner argues (Br.

12-15) that because Congress was concerned with

the delays attendant upon the administrative process,

it must have intended to bar further enforcement by

the government after 180 days. Such an intention

would have been at odds with Congress’ principal

concern in adopting the 1972 amendments.

There is no doubt that Congress was unhappy

about administrative delays and hoped that granting

the Commission authority to litigate would result in

more expeditious action. Petitioner catalogues the

remarks of individual congressmen expressing that

concern. However, those parts of the floor debate

that petitioner cites as suggesting a limitation period

“are highly ambiguous at best.” Equal Employment

Opportunity Commission v. Louisville & Nashville

R. Co., supra, 505 F. 2d at 616. The expressions of

individual views upon which petitioner relies do not

establish that Congress intended that the litigation

authority granted to the Commission would termi-

nate 180 days after the filing of the charge.’ Those

statements cannot be substituted for Congress’ fail-

ure to write a time limitation into the Act.

Nor do such statements constitute the most rele-

vant or authoritative legislative history. “Of more

utility, * * * is the studied Section-by-Section Analy-

sis” prepared by Senators Williams and Javits ex-

plaining the Act as agreed to by the Joint Conference

Committee. Equal Employment Opportunity Com-

mission v. E. I. duPont de Nemours and Co., supra,

* While Senator Dominick at one point noted that an amend-

ment to reduce the 180-day period to 150 days “reduces the

time period within which the Commission may file” (118

Cong. Rec. 2862 (1972) (Legislative History at 1347)), he

also referred to the 180-day provision as a “private filing re-

striction” (118 Cong. Rec. 1069 (1972) (Legislative History

at 898)). In a slightly different context, Senator Dominick

also observed that “I do not think the Commission should be

mandated on what date [it] should bring suit when [it is]

trying to work out matters the best [it] can by conciliation.”

118 Cong. Rec. 1069 (1972) (Legislative History at 894).

Similarly, while Senator Javits termed the 180-day provision

as “the allowable time for the Commission to move into a

given situation” (118 Cong. Rec. 1800 (1972) (Legislative

History of 1578)), at another point he expressed the view

that “the Commission should not, in view of its purpose, be

under * * * [a] strict timetable * * *.” 118 Cong. Rec. 1069

(1972) (Legislative History at 894).

516 F. 2d at 1800. That analysis confirms that the

180-day provision was not intended to cut off the

Commission’s right to bring a civil action but merely

(118 Cong. Rec. 7168 (1972) (Legislative History

at 1847)):

to make sure that the person aggrieved does

not have to endure lengthy delays if the Com-

mission or Attorney General does not act with

due diligence and speed. Accordingly, the provi-

sions described above allow the person aggrieved

to elect to pursue his or her own remedy under

this title in the courts where there is agency

inaction, dalliance or dismissal of the charge, or

unsatisfactory resolution.

Congress contemplated that a private party was to

have the option either to sue in his own name or to

rely upon the Commission’s enforcement efforts. See

Equal Employment Opportunity Commission v. Kim-

berly-Clark Corp., 511 F. 2d 1352, 1858-1359 (C.A.

6), certiorari denied, 423 U.S. 994; Tuft v. McDon-

nell Douglas Corp., 517 F. 2d 1301, 1305-1306 (C.A.

8); Equal Employment Opportunity Commission v.

E. I. duPont de Nemours and Co., supra, 516 F. 2d at

1300.° But the complainant’s right to elect between

® Petitioner argues (Br. 29) that the provision of Section

706(f) (1) that permits the Commission to intervene only in

those private suits of public importance implies that the Com-

mission cannot itself sue after 180 days. But it implies only

that Congress wished to bar duplicative actions involving

identical claims and that the Commission lacks power to bring

its own enforcement actions only if the complainant chooses

“to elect to pursuffhis or her own remedy.”

Se a RT mee

remedies would be illusory if the Commission’s right

of action already had been extinguished. If, as the

section-by-section analysis indicates, the complainant

could “elect to pursue his or her own remedy,” the

inference is necessary “that the Commission’s right

to sue continues after the individual’s right has ma-

tured.” Equal Employment Opportunity Commission

v. Cleveland Mills Co., swpra, 502 F. 2d at 157.

In placing the conference report before the House,

Congressman Perkins emphasized that conciliation

was to be the primary method of Title VII enforce-

ment and that recourse to the remedy of litigation

would be appropriate only where “conciliation proves

to be impossible.” 118 Cong. Rec. 7563 (1972) (Legis-

lative History at 1856). Careful consideration and pa-

tient study of employment practices and exploration of

avenues of agreement take time. Equal Employment

Opportunity Commission v, Cleveland Mills Co., supra,

502 F. 2d at 157. The Sixth Circuit observed in

Equal Employment Opportunity Commission v. Kim-

berly-Clark Corp., supra, 511 F. 2d at 1357:

It is precisely in the type of case where the EEOC

might ultimately decide to sue—where wide-

spread discrimination of a systematic or subtle

nature is involved—that effective conciliation at-

tempts may well require more than six months.

In such cases, discussion will be necessary with

labor unions and company personnel, expert con-

sultants may be involved, and the charging par-

ties must be kept fully informed of the progress

of negotiations.

Congress was well aware that, because of the large

number of charges received and the time required

for conciliation, the Commission could not process

charges within 180 days." See H.R. Rep. No. 92-238,

92d Cong., 1st Sess., pp. 3-5, 12 (1971) (Legislative

History at 63-65, 72); S. Rep. No. 92-415, 92d Cong.,

Ist Sess., pp. 5-6, 87 (1971) (Legislative History at

414-415, 495). In the absence of compelling evidence,

Congress cannot be presumed to have enacted a statute

of limitation that would terminate the Commission’s

litigation authority for failure to meet a timetable

totally incompatible with the Commission’s workload

and limited resources.

Congress would not have imposed a limitation pe-

riod that could have no other resuit than to nullify

the Commission’s power to conduct effective concilia-

10 At the end of fiscal year 1976, there were nearly 128,000

charges pending with the Commission. BNA Daily Labor Re-

port No. 14 (January 20, 1977).

11 Petitioner assumes (Br. 30) that delays are the result of

failures on the part of the Commission to act expeditiously

rather than the volume of claims and the limited Commission

resources. The Fifth Circuit reviewed the legislative history

and concluded that “we find no significant indication that

Congress attributed the backlog to inefficiency.” Hqual Em-

ployment Opportunity Commission v. Louisville & Nashville

R. Co., supra, 505 F.2d at 617. Indeed, in many cases delay

is occasioned by employers who, like petitioner (A. 7), re-

quest prolongation of conciliation efforts beyond the point

at which the Commission has determined initial efforts to

have been unsuccessfv!.

- ee TE RE Bin NE meno oe -

tion.” A respondent who prolongs conciliation efforts

by pretending to bargain in good faith could easily

extend the administrative process beyond 180 days.

See Equal Employment Opportunity Commission v.

E. I. duPont de Nemours and Co., supra, 516 F. 2d

at 1300. Under petitioner’s argument here, the Com-

mission would thereupon be deprived of the principal

sanction with which to back up its further efforts to

achieve conciliation.

The Commission could avoid this dilemma only by

prematurely laying the matter before a court, there-

by terminating potentially fruitful conciliation ef-

forts.” But such premature actions cannot be brought

under the statutory language permitting suit only “if

* * * the Commission has been unable to secure * * *

fan acceptable] conciliation agreement.” Section 706

(f) (1) of the Act. See Patterson v. American Tobacco

% As the court noted in Equal Employment Opportunity

Commission V. Bartenders Int’l Union, Local 41, 369 F. Supp.

827, 881 (N.D. Cal.):

Mindful of two and three year delays, this court can-

not accept defendant’s contention that when Congress

gave the Commission the right to sue with one hand, it

took it away with the other by requiring that the suit be

commenced within a time constraint which it knew the

Commission could not meet.

18 Section 706(f)(1) provides that “[u]pon request, the

court may, in its discretion stay further proceedings for not

more than sixty days pending * * * further efforts of the

Commission to obtain voluntary compliance.” Although that

provision may make it possible for efforts to continue in some

cases, the filing of suit itself may affect the conduct of com-

pliance efforts.

Co., supra; Equal Employment Opportunity Commis-

sion v. Hickey-Mitchell Co., supra. Congress did not

intend to require premature actions, a requirement

that would weaken the conciliation process, or add un-

necessarily to the caseloads of the district courts, or

both.

Moreover, if the Commission is barred from bring-

ing suit after 180 days and does not do so before,

thousands of complainants would be forced to bring

suit themselves in order to vindicate their rights

under the Act. Since many complainants are poor

and unable to afford legal representation, their in-

ability to bring suit would effectively deprive them

of the protection against employment discrimination

that Congress meant to confer. It was to avoid pre-

cisely this result that Congress granted the Commis-

sion litigation enforcement powers in the first place

(S. Rep. No. 92-415, 92d Cong., 1st Sess., p. 17 (1971)

(Legislative History at 426)):

Since most title VII complainants are by the

very nature of their complaint disadvan-

taged, the burden of going to court, initiating

legal proceedings by retention of private coun-

sel, and the attendant time delays and legal

costs involved, have effectively precluded a very

large percentage of valid Title VII claims from

ever being decided. * * * [T]he public has an

overriding interest in protecting the individual

from the denial of those rights which Congress

has specifically provided.

In short, the 180-day limitation period petitioner

would read into the statute would significantly in-

ee eee ee e "

terfere with judicial as well as administrative vin-

dication of Title VII rights. This Court “will not

engraft on the statute a requirement which may in-

hibit the review of claims of employment discrimi-

nation in the federal courts.” McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 798-799.

There is no evidence that Congress considered the

public interest in Title VII enforcement by the Com-

mission secondary to the goal of quick administra-

tive action. Instead, the legislative record points to

a congressional recognition that while delays in the

system were unfortunate and administrative action

should be expedited, fulfillment of Title VII goals

was the first priority. For example, in emphasizing

the promptness with which it hoped the Commission

would make its reasonable cause determinations,

Congress was careful to avoid placing an absolute

time limitation upon the deliberative functions of

the Commission with respect to discrimination claims.

Section 706(b) provides only that “so far as prac-

ticable,” the Commission is to “make its determina-

tion on reasonable cause * * * not later than one hun-

dred and twenty days from the filing of the charge.”

Since Congress carefully avoided placing an abso-

lute time limitation on the first step in the preliti-

gation process, and imposed no explicit limitation on

when further steps were to be taken, there is no rea-

son to infer that Congress intended that the Commis-

sion would forfeit its litigation powers altogether if

the final steps were not taken within 180 days.

Congress’ decision to permit the Commission to

bring suit with respect to the thousands of charges

pending with the Commission on the effective date

of the 1972 amendments (Pub. L. 92-261, Section 14,

86 Stat. 113) also indicates that Congress’ principal

concern was with the widest possible Commission

enforcement rather than with the imposition of a

limitation period. See Equal Employment Opportu-

nity Commission v. E. I. duPont de Nemours and Co.,

supra; Equal Employment Opportunity Commission

v. Kimberly-Clark Corp., swpra. Congress was well

aware of the limited extent of the Commissicn’s re-

sources but acted to permit Commission suits on pend-

ing claims, even though most of those cases could not

have been brought within 180 days of the original

filings of the charges. Equal Employment Opportu-

nity Commission v. Louisville & Nashville R. Co.,

supra, 505 F. 2d at 613.“ Interpreting the 180-day

provision as a statute of limitation is “flatly in con-

flict with [that section]” and would bar the Commis-

%* The reason for making the 1972 amendments applicable

to cases pending before the Commission was explained by the

Attorney General in a letter quoted in Equal Employment

Opportunity Commission V. Christiansburg Garment Co., Inc.,

376 F.Supp. 1067, 1074 (W.D. Va.) :

[T]he present provisions of S. 2515 (Se. 13) contem-

plate that the new enforcement provisions would only

apply to charges filed after its effective date. We see

no reason why the many thousands of persons who

have filed charges which are still being processed and

who have waited as long as 18 months to two years for

resolution of them should not have the benefit of the

new enforcement authority.

sion from bringing enforcement actions on those

charges “despite explicit congressional intent that two-

year-old charges ‘have the benefit of the new enforce-

ment authority.’” Equal Employment Opportunity

Commission v. Kimberly-Clark Corp., supra, 611 F.

2d at 1357-1358.

The claim that the 180-day period constitutes a

statute of limitations for Commission enforcement ac-

tions therefore has no more support in the underlying

congressional purpose and legislative history than it

does in the statutory language. A 180-day limitation

period would be contrary to the intent expressed

throughout the Act and its history to extend rather

than limit effective Title VII protections. Nor would

such a limitation square with the Commission’s two

responsibilities of conciliation and litigation. ‘The

congressional purpose that the possibilities of volun-

tary compliance by agreement be first thoroughly ex-

plored and the congressional purpose that judicial en-

forcement proceedings be primarily the province and

responsibility of the Commission may be harmonized

but not if a 180-day period from the filing of the

charge is imposed for the filing of judicial proceed-

ings.” Equal Employment Opportunity Commission

v. Cleveland Mills Co., supra, 502 F. 2d at 157."

16 Petitioner argues that if an employer is engaged in a

continuing violation, a new charge could be filed that would

restart the running of the limitation period (Br. 33).

Such an approach “would serve no purpose other than the

creation of an additional procedural technicality.” Love v.

Pullman Co., 404 U.S. 522, 626. As the court said in Equal

COMMISSION ENFORCEMENT ACTIONS ARE NOT

SUBJECT TO STATE STATUTES OF LIMITATION

Petitioner states broadly that “this Court has re-

peatedly held that suits filed under [federal] statutes

[that contain no limitation period] are governed by

the most analogous state limitation period” (Br. 34).

But the cases upon which petitioner relies for that

proposition involved only private actions brought

under sych statutes. See, e.g., Johnson v. Railway

Express Agency, Inc., 421 U.S, 454. Cf. Runyan v.

McCrary, 427 U.S. 160, 180. The rule is otherwise

when the federal government itself exercises a right

to sue under a federal statute.”

Employment Opportunity Commission v. Cleveland Mills Co.,

supra, 602 F. 2d at 157:

[Limiting the Commission’s right to sue to a period of 180

days following the filing of the charge] would neceasi-

tate the filing of multiple charges and would further

complicate the Commission’s work with technicalities

serving no useful purpose. If the processes of investi-

gation and conciliation are proceeding actively 180 days

after the filing of the charge, the Act’s purposes are

served by permitting the administrative processes to

proceed to completion as rapidly as possible. Discon-

tinuance and disruption in commencing new proceedings

would serve no such purpose.

1* Indeed, private suits to enforce rights created by Con-

gress have been held not to be subject to state statutes of limi-

tations when the sole remedy is in equity. Holmberg v. Arm-

brecht, 327 U.S. 892.

he ks OR aR Rees mate se

Such suits are subject to state statutes of limita-

tions only where the congressional intent clearly re-

quires that result. United States v. Nashville, Chat-

tanooga & St. Louis Railway Co., 118 U.S, 120, 125.

“It has always been the rule that statutes of limita-

tion do not apply to the United States in the

absence of a clear and manifest congressional intent

that they shall apply.” United States v. De Queen and

Eastern Railroad Co., 271 F. 2d 597, 600 (C.A. 8).

This rule is grounded in considerations of federalism

and reflects the constitutional judgment that within

its area of competence the federal government must

be free to act without state interference.

The Act by its terms does not subject the Com-

mission’s enforcement litigation to state statutes of

limitations.” Nor is there any indication in the leg-

islative history of a congressional intent that state

statutes would govern the Commission’s enforcement

efforts. Accordingly, under the settled rule pertain-

ing to government litigation, this action is not sub-

ject to the state limitations upon which petitioner

relies.

17 Petitioner mistakenly relies (Br. 41 n. 60) on 42 U.S.C.

1988. That statute provides for the application of state

law only where federal law is “deficient in the provisions

necessary to furnish suitable remedies and punish offenses.”

In other words, state law applies only to the extent necessary

to further the purpose of the Act to vindicate civil rights.

In contrast, a statute of limitations would frustrate that pur-

pose. Accordingly, such statutes do not “furnish suitable

remedies and punish offenses” within the meaning of 42

U.S.C. 1988. ,

Application of state statutes of limitations, more-

over, would be inconsistent with the Title VII en-

forcement scheme. Many of the considerations dis-

cussed above with respect to the 180-day provision

also refute the suggestion that Congress intended the

Commission’s enforcement actions to be subject to

state statutes of limitations. Especially in those ju-

risdictions with short limitation periods, application

of state limitation statutes would jeopardize efforts at

conciliation, encourage premature litigation, and

thwart the underlying statutory purposes of eradicat-

ing discrimination in employment,

Although petitioner is not explicit on this point,

presumably it would argue that a state statute of

limitation would run from the time the discrimina-

tory act was committed. That was the understanding

of the district court (A. 22). But such a rule would

be unworkable. The Commission has no jurisdiction

to act until a charge is filed, which, as has been dem-

onstrated above, may occur as much as 300 days

after the discriminatory act. The Commission is.

barred by Section 706(f) from bringing an enforce-

ment action within 30 days of the filing of the charge,

and it may not thereafter institute litigation until

after it has investigated, found reasonable cause, and

attempted conciliation. Patterson v. American To-

bacco Co., supra; Equal Employment Opportunity

Commission v. Hickey-Mitchell Co., supra. In view

of the enormous backlog of charges and the time-

consuming nature of the required investigatory and

conciliatory procedures, the Commission often would

AAU EE Ry ae ae hi te

be unable to complete those procedures within the

abbreviated limitation period petitioner would have

this Court impose.

The legal and practical obstacles to the bringing

of timely actions by the Commission under state stat-

utes of limitations would be largely removed by sus-

pending the running of such statutes until the fed-

era! right of action fully ripens. Cf. McAllister v.

Magnolia Petroleum Co., 357 U.S. 221. Indeed, it

would appear that the cause of action does not “ac-

crue,” and therefore that any applicable statute of

limitations by its own terms would not even begin to

run, until the federal right of action ripens and the

potential plaintiffs are first entitled to bring suit.

The Commission’s right to sue does not ripen until

it “has been unable to secure from the respondent a

conciliation agreement acceptable to the Commission’”’

(Section 706(f)(1)) or, in other words, until the

Commission finally determines that its conciliation

efforts have failed. See, e.g., Patterson v. American

Tobacco Co., supra. That did not occur here until

September 13, 1973 (A. 7), and this action was in-

stituted within six months thereafter (A. 9). Thus

even if petitioner is correct in its contention that state

statutes of limitation apply to enforcement actions

brought by the Commission, this action was brought

within the pertinent limitation period and so was not

barred.

Even so, it is unlikely that Congress intended to

subject the Commission to the vagaries of state stat-

utes of limitations. Nothing in the legislative history

suggests that Congress believed that the employment

practices of corporations operating multistate busi-

nesses would or should be varyingly susceptible to

correction depending on the state in which suit is

brought challenging those practices. Moreover, in

many jurisdictions there may be substantial uncer-

tainty about which of several statutes of limitations

should apply. As one commentator has noted, if Con-

gress has not decided what the appropriate limita-

tion period should be, “the pretense that state leg-

islatures had decided it leads only to confusion.”

Note, A» Limitation on Actions for Deprivation of

Federal Rights, 68 Colum, L. Rev. 763, 771 (1968).

This Court recognized this problem a century ago in

United States v. Thompson, 98 U.S. 486, 491:

The limitations in like cases may be different in

each State, and they may be changed at pleasure,

from time to time. The government of the

Union would in this respect be at the mercy of

the States. How that mercy would in many

cases be exercised it is not difficult to foresee.

The constitutional relations of the head and the

members would be reversed, and confusion and

other serious evils would not fail to ensue.

The public interest character of the Commission’s

enforcement actions precludes application of state

statutes of limitation. Cf. United States v. Summer-

lin, 310 U.S. 414; Trbovich v. United Mine Workers,

404 U.S. 528. See also National Licorice Co. v. Na-

tional Labor Relations Board, 309 U.S. 350, 362;

Nabors v. National Labor Relations Board, 323 F. 2d

686, 688-689 (C.A. 5). The enforcement of a na-

ee a ee ee nes

tional policy against employment discrimination, like

enforcement of federal statutes governing health,

labor relations, and business, is a matter of vital

government concern. Congress created the Commis-

sion to eliminate unlawful employment discrimina-

tion, a mission this Court has characterized as being

of the highest priority. Alexander v. Gardner-Denver

Co., supra, 415 U.S. at 47.

Congress stated that “the Commission has the basic

responsibility to achieve the objectives of Title VII.”

H.R. Rep. No. 92-238, supra, at 14 (Legislative

History at 74). Thus a suit to enforce Title VII

rights “involve[s] the vindication of a major public

interest.” Franks v. Bowman Transportation Co.,

424 U.S. 747, 778 n. 40. The interest of private

parties in the outcome of such litigation does not

deprive it of its public character. Jbid. See also Albe-

marle Paper Co. v. Moody, 422 U.S. 405, 417-418.

These considerations have led the courts of ap-

peals to hold, without exception, that when the Com-

mission sues to enjoin unlawful employment prac-

tices, it is acting as the sovereign in furthering the

public interest and therefore is not subject to state

limitations periods. See Equal Employment Oppor-.

tunity Commission v. Griffin Wheel Co., 511 F. 2d

456 (C.A. 5), affirmed on rehearing, 521 F. 2d 223;

Equal Employment Opportunity Commission v. Kim-

berly-Clark Corp., supra. The Sixth Circuit correctly

observed in the latter case (511 F. 2d at 1359):

[T]he eradication of discrimination by race and

sex promotes public interests and transcends

private interests. * * * “[T]he Commission may,

in the public interest, provide relief which goes

beyond the limited interests of the charging par-

ties.” Thus, the EEOC represents the public in-

terest when it sues to enforce Title VII, not

solely the interests of the private charging par-

ties.

Petitioner nevertheless argues, relying on Equal

Employment Opportunity Commission v. Griffin

Wheel Co., supra, that at least that portion of the

Commission’s suit that seeks back pay for individual

victims of discrimination implicates only private

rights and therefore should be subject to the state

statute of limitation. But subsequent to the Fifth

Circuit’s decision in Griffin Wheel, this Court has

had occasion to emphasize the public character of

back pay awards. Franks v. Bowman Transporta-

tion Co., supra; Albemarle Paper Co. v. Moody, supra.

In Albemarle Paper, the Court referred to the simi-

larity in this respect of Title VII and the National

Labo: Relations Act, in both of which “making the

workers whole for losses suffered” plays an impor-

tant role in the “vindication of the public policy”

(422 U.S. at 419). Cf. Nathanson v. National Labor

Relations Board, 344 U.S. 25, 27.

Because back pay is such a fundamental clement

in the statutory scheme for protection against em-

18 The Court noted that the back pay provision of Title VII

was modeled after the National Labor Relations Act (422 U.S.

at 419).

AL A sl) AROS NAN, thal A PP pce oe

ployment discrimination, any distinction between in-

junctive and back pay claims for statute of limita-

tions purposes would be artificial and inappropriate.

This Court has previously held the United States

immune from a state limitation period where its suit

to collect money on behalf of private individuals was

also a vehicle for achievement of public policy objec-

tives.” See, e.g., United States v. Minnesota, 270 U.S.

181, 196. As the Court has noted, “[u]nless expressly

waived, [immunity from state limitations periods] is

% The role of the Commission in Title VII enforcement

contrasts sharply with the situation presented by United

States v. Beebe, 127 U.S. 338, where the United States was

merely a formal plaintiff. In Beebe the United States brought

suit against the heirs of an individual who had fraudulently

obtained patents for land. Despite the absence of any statute

authorizing suit, the Court allowed the government to file the

action but held that it was subject to the applicable state

limitation period since the private parties rather than the

United States were the real parties in interest. The Court

reasoned (127 U.S. at 347; emphasis added) :

We are of the opinion that when the government is a

mere formal complainant in a suit, not for the purpose

of asserting any public right or protecting any public

interest * * *, but merely to form a conduit through

which one private person can conduct litigation against

another private person, a court of equity will not be re-

strained from administering the equities existing between

the real parties by any exemption of the Government de-

signed for the protection of the rights of the United

States alone.

By contrast, when the Commission files suit to eliminate un-

lawful employment practices and seeks back pay, it is dis-

charging its responsibility to achieve the objectives of Title

VII and is not in reality suing on behalf of private parties

alone.

implied in all federal enactments.” Board of Com-

missioners of Jackson County v. United States, 308

U.S. 348,-351. The same reasoning is applicable here,

and the same result is appropriate.

Petitioner argues that application here of the long-

standing doctrine precluding application of state limi-

taticns to federal actions would allow the Commission

to sue at any time without limitation, that respond-

ents will be prejudiced by the litigation of stale claims,

and that Congress could not have intended that result.

But as the Sixth Circuit noted in rejecting the same

contention in Equal Employment Opportunity Com-

mission v. Kimberly-Clark Corp., supra, 511 F. 2d

at 13858 n. 9: “It is not unusual for a provision

authorizing the federal government to enforce con-

stitutional rights to have no statute of limitations

attached.” Neither the public accommodations nor

the public facilities titles of the Civil Rights Act of

1964, 78 Stat. 248 et seg. and 246 et seq., 42 U.S.C.

2000a et seq. and 2000b et seq., contain any limitation

on the filing of suits alleging their violation. More-

over, where Congress has imposed a statute of limita-

tions in other public policy statutes, the period of

time allowed has been sufficient to prevent frustra-

tion of the remedial purposes of the Act. See, e¢.g.,

Section 4B of the Clayton Antitrust Act, as added, 69

Stat. 283, 15 U.S.C. 15b (4-year period).

Petitioner’s fear that stale litigation will cause

prejudice appears exaggerated. It cannot be

“state[d], in the abstract, that prejudice by reason

of stale claims will be visited upon employers.” Equal

Employment Opportunity Commission v. E. I. du-

Pont de Nemours and Co., supra, 516 F. 2d at 1302.

As the Sixth Circuit stated in Equal Employmen:

Opportunity Commission v. Kimberly-Clark Corp.,

supra, 511 F. 2d at 1358 n. 9:

Use of a truly “stale” charge will mean that in-

junctive relief is probably unwarranted under

traditional equitable principles. Furthermore,

Congress has expressly limited employers’ lia-

— for back pay to two years of a charge’s

ling.

Moreover, any prejudice from delays is likely to

be felt more strongly by the Commission, which is

the party bearing the burden of proving that dis-

crimination occurred.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

DANIEL M. FRIEDMAN,

Acting Solicitor General.

KEITH A. JONES,

Deputy Solicitor General.

Tuomas S. MARTIN,

Assistant to the Solicitor General.

ABNER W. SIBAL,

General Counsel,

JosEPH T. EDDINS,

Associate General Counsel,

BEATRICE ROSENBERG,

JOHN SCHMELZER,

Attorneys,

Equal Employment Opportunity Commission.

MaRcH 1977.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.