Opposition — Northwest Airlines, Inc. v. Laffey

IN THE

Supreme Court of the United States

October Term, 1977

NortHwest Arrives, Inc.

Petitioner,

v.

Mary P. Larrey, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF IN OPPOSITION

MicuaeL H. GotresMan

Rosert M. WEINBERG

Bredhoff, Gottesman, Cohen

& Weinberg

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorneys for Respondents

So 3M

TABLE OF AUTHORITIES

Cases Page

Addison v. Huron Stevedoring Corp., 204 F.2d 88 (2nd

Tm: TENTED scccininsctinieienersenieieeaniielguenaneniniinneniteniie 28, 32

Air Transport Association v. Hernandez, 1 FEP Cases

BR IE SIIITTD ccncncisinienicstomesinctsevesteneseesinennbiniaibsesneline 29

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) 31, 37

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680

ERIE . convedenensscnnienniaintantadnesesmseensenmneviiioneninbuicantniitinianiineienin 32

Battaglia v. General Motors Corp., 169 F.2d 254 (2nd

Sees SNEED’ <cuiiciidllibnlicssaihialatonsibiccatinibiicibbitioenidaibiabbeeidtanpnibindain 32

Bing v. Roadway Express, 485 F.2d 441 (5th Cir.

TEE eiciiseeeei iit leceiepaaettcseiidentesindannseaniinaibininniidaets 33

Brennan v. Air Terminal Parking, Inc., 21 W.H. Cases

Ge I, SIE ciceslcicesenasieinicsitisnnsiesinrninwcendenniiasdtenbisdsnisaien 25

Brennan v. City Stores, Inc., 479 F.2d 235 (5th Cir.

SUITED Wiviisscietbenesiaincienditaadatsititsiiinlitaiddamdadinethidnapatiaibataisiaiasin 19

Brennan v. General Motors Acceptance Corp., 428 F.2d

I I IR I sii iitchieeihccactalheeiiinadaiabaaeiiia 25

Brennan v. Heard, 491 F.2d 1 (5th Cir. 1974) ...00..000...... 25

Brennan v. J. M. Fields, Inc., 488 F.2d 443 (5th Cir.

ETE cenvansnnbentemnitateninniicacniasdlibenssitpuieiassatiicaadticanisainiancaitesatiidininien 25

Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179 (8th

i RD ciceenintetercsenentattnniaeiteniibteinsiaimittaabiniaiaalanes 16

Brennan v. Owensboro-Davies Co. Hosp., 523 F.2d

SE CIEE ctieresscsivicsccsennescenivtiaidatinsinetiigncicinsin 13, 21

Brennan v. Prince William Hospital Corp., 503 F.2d

SS RR LTT 14, 21

Page

Brennan v. Valley Towing Co., Inc., 515 F.2d 100 (9th

A, TID cetcceencnnnseentssnsensnscntasceusnesnesnsntesinneessennnetiomatnnnies 16

Brennan v. Zager, 22 W.H. Cases 323 (M.D. Tenn.

TTI csccccscctesnsenscsnasncsntanosssisssctemnsnicneneisemmesinmmnenenencneensness 25

Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1954)... 27

Caserta v. Home Lines Agency, Inc., 273 F.2d 943 (2nd

CI, TD ccceccstcssictciatcccrastnsventnsntnsniscaneniaisnnimentnanmianeeisiinien 28

Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139 (5th

I, TE cetacettarccisterrninssesscttnensennsterctnentimensitannintenseatnuanninn 25, 26

Conklin v. Joseph C. Hofgesang Co., 407 F. Supp. 1090

ef eee 25

Corning Glass Works v. Brennan, 417 U.S. 188

ETD <tntninnincnnnienetscniistnannsindlbenusentanmpictminaseninens 9, 10, 15-18, 25

Day & ‘Zimmerman v. Reid, 168 F.2d 356 (8th Cir.

TEED cesssssnsnssscnnsssusistnnsihindgatiasaannaideniaipiancineaitiessmiaieteiipiataisin 30

Denicola v. G. C. Murphy Oo., 562 F.2d 889 (3rd Cir.

ER cxcsstensennianinsiaiuinnianititiaepianniineneeieminmianeniaen 9

Dunlop v. New Hampshire Jockey Club, Inc., 420 F.

Be, GD CB. TEE. TDD ccccnncsscsesscessssensestsenneseemasinancenne 25

Dunlop v. State of Rhode Island, 398 F. Supp. 1269 (D.

Sk is SITU. ccnssaciccocstiesiatbuainnebvaenieneliatibasaibdcemenianiieiiidaeniiaiin 25

EEOC vy. Detroit Edison Co., 515 F.2d 301 (6th Cir.

FTG sccqunnitsnnsstnnsinniithannindiinmeimmainmeantemenenes 33-34

EEOC v. Steamfitters Local 638, 542 F.2d 579 (2d Cir.

SUED <ssctsdnaesisunsedesdaieibeaaiiiiedaihbianiiiiaiiinddatiiiidennienianibasipimlistieess 34

Electrical Workers Local 790 v. Robbins & Myers, Inc.,

ee ITED seniinctivsciscetctosactcneiitnsctatticontinnepetintiaanitins 36

Evenson v. Northwest Airlines, 1 FEP Cases 177 (E.D.

Tas, SEITE <stsbieiechicnkuonseinsinesdcdoeiigenitiniihianeitinciilagtecaiiactaaeiaiiadaaliads 29

ii

Page

Foremost Dairies v. Ivey, 204 F.2d 186 (5th Cir. 1953).. 30

Fred Wolferman, Inc. v. Gustafson, 169 F.2d 759 (8th

a GID cxstisciicssincesincicanscccininttmssanibiabiinniabiistininiiiaapeiianein 30

General Electric Co. v. Porter, 208 F.2d 805 (9th Cir.

SEY scesceiaaicetdtianceaseniaciaatbiastnemiaienabliailidaiatiiaadidataiidceidelalidtdie 30

Glus v. G. C. Murphy Co., 562 F.2d 880 (3rd Cir.1977) 9

Herman v. Roosevelt Fed. Sav. & L. Ass’n., 432 F.

I, GD CHS GR, TICS D ctccscccscscsccccscnincimnamnssnniininnniene 25

Hertz Driveself v. United States, 150 F.2d 923 (8th

I, TRIE \ciscesisecinnniteiniahsdasaiiabieniiilaceisideneneinanienaititieatinblaaieniiins 26

Hodgson v. American Bank of Commerce, 447 F.2d 416

SE SUG SUID nassccnenscnnntiinnisenensdecistecaiobsensineiiiinignssenniaces 19

Hodgson v. Baltimore Regional Joint Board, Amalga-

mated Clothing Workers, 462 F.2d 180 (4th Cir.

TITRTEED cccsonssaheincesniicitessiasitinbabiithinisianincninianiibiesndstaainsisininianbtiieen 9

Hodgson v. Behren Drug Uo., 475 F.2d 1041 (5th Cir.

TENET siieenserctetnisessemnisaeneesennseepstentieiueinnansdaesetainctbiaiititian 13, 19, 21

Hodgson v. Brookhaven General Hospital, 436 F.2d 719

SRE UIIE TIPPED <cienveconnnenctsnsiitticenstiiiitadendnteegnenidnetnaianatinilatss 21

Hodgson v. Daisy Manufacturing Co., 445 F.2d 823 (8th

GI SPUD sccidsnsninchineenennnectbecnicianssbannniunciiaciiniiibadiniiindaliaaiinciiiiite 19

Hodgson v. Fairmont Supply Co., 454 F.2d 490 (4th

SE GI. ccenansstsceviicensenietensennenentannnianntccaneunieciisatiiidinmeieln 13

Hodgson v. Humphries, 454 F.2d 1279 (10th Cir. 1972).. 38

Hodgson v. Miller Brewing Co., 457 F.2d 221 (7th Cir.

EEE cssensntnesensininstnnniinsenntcenicinanareniiciniatllbidiinnsiiiidtninitniiaiitin 21

Hodgson v. Sagner, Inc., 326 F. Supp. 371 (D. Md.

TINUED sccssnssestsmnenseensnnnsientaniensnnnanitenitinaibennstiittenatsiiiinnin 9

Page

Hodgson v. Security National Bank of Sioux City, 460

P2d 57 (Gth Cir. 1972) .......0.c.ccrccccscosescccecsescsccesescesssesssoses 13

Jewell Ridge Corp. v. Local, 325 U.S. 161 (1945) ............ 32

Katz v. School District of Clayton, Mo., 557 F.2d 153

A _; 5 ee nen enn 21

Lansdale v. United Airlines, 437 F.2d 454 (5th Cir.

| 29

McClanahan v. Mathews, 440 F.2d 320 (6th Cir. 1971)... 28

Missel v. Overnight Motor Transportation Co., 126

fp DD SS 33

Mitchell v. Williams, 420 F.2d 67 (8th Cir. 1969) ............ 16

Monday v. United States, 421 F.2d 1210 (7th Cir. 1970).. 26

Nabob Oil Co. v. United States, 190 F.2d 478 (10th Cir.

a a 26-27

Ott v. ‘Midland-Ross Corp., 523 F.2d 1367 (6th Cir.

Eee” a 38

Peltier v. City of Fargo, 533 F.2d 374 (8th Cir. 1976)... 21

Pezzillo v. Gen. Tel. & Electron. Inform. Sys., Inc., 414

F. Supp. 1257 (M.D. Tenn. 1976) ................c0secscecsssesese 25

Powell v. Southwestern Bell Telephone Co., 494 F.2d

A Se TD sectaniceticnininnictsonteermemninmnceninnane 38

Richard v. Marriott Corp., 549 F.2d 303 (4th Cir. 1977).. 28

Rothman v. Publicker Industries, 201 F.2d 618 (3rd Cir.

SETI ‘cnncassiinsenpniteieeiiseniiiguestasiantndipeaiietineisaiisigiaiiediedimuiiutivion 28

Rie NRE RE Pees eee 9

Shultz v. First Victoria National Bank, 420 F.2d 648

| 13

Page

Shutlz v. Wheaton Glass Co., 421 F.2d 259 (3rd Cir.

TEE <episnasitenieietieiidattainesiaigieandimtatensestasalnatnieantiginmeeeies 9,13

Snell v. Quality Mobile Home Brokers, Inc., 424. F.2d

Is TI acter cacininitceniinieseiianatetastteenicctens saaniiagi 30

Spies v. United States, 317 U.S. 492 (1943) wo... 24

Steiner v. Mitchell, 350 U.S. 247 (1956) ....ccccccccsesesecseseee, 32

Tennessee Coal Co. v. Muscoda Local, 321 U.S. 590

dh, RUE EEE AES Plonn ep oc a ER 32

United States v. Bishop, 412 U.S. 346 (1973) oo... 26

United States v. Fidanian, 465 F.2d 755 (5th Cir.

SII sicttaeacesiedeindiiadaienhatessitetcudesabalslaptainiattiaetenttataniattaetsinansninnes 26

United States v. Illinois Central R. Co., 303 U.S. 239

SID sdecicausteitonseasibdidtndinebpedeiddiiahatabastaiiideiantdiaiiciedasietsshameeaeasenees 24

United States v. Murdock, 290 U.S. 390 (1933) 00000000... 24

Usery v. Allegheny County Institution Dist., 544 F.2d

I ile aia 21

Usery v. Goodwin Hardware, Inc., 426 F. Supp. 1243

ON I I ill lait etna etaticaties 25

Vogel v. Trans World Airlines, 2 FEP Cases 297 (W.D.

ERE, Sapa ee 29

Wirtz v. F. ‘M. Sloan, Inc., 411 F.2d 56 (3rd ‘Cir. 1969) 16

Wright v. Carrigg, 275 F.2d 448 (4th Cir. 1960) ............ 28

Statutes

Civil Rights Act of 1964, Title VII, 42 U.S.C.

GS RRPIIED cineccensisieinssosdenenietesssninnesensesensstemnessnsemmmmenenmnees passim

Equal Pay Act, 29 U.S.C. § 206 ............ccccsssssssesssesssseees passim

Equal Pay Act, 4 2, not codified, P.L. 88-38,

I I i euiens 18

Equal Pay Act, § 4, not codified, P.L. 88-38,

ye! 2) | re)

Fair Labor Standards Act, 29 U.S.C. § 216 ............ 15, 26-27

Portal to Portal Act of 1947,

—————eEeEeEeEE 3, 6, 31, 32

, Ris Coe} Se 32

, kis OO) SE 32

, Rip te > ee 24-27

, Bis Co) | Se 27

Y eis Ce > 11, 14, 27-33

Legislative Materials

BNA Operations Manual, Equal Pay for Equal Work

(19GB) ....ceccccssssessesscesersessensenssenesesannennelnnnnnnnnnnn 9

Hearings on Equal Pay Act Before the Special Sub-

committee on Labor of the House Committee on Edu-

cation and Labor, 88th Cong., Ist Sess. (1963) .......... 8-9

H.R. Rep. No. 309, 88th Cong., Ist Sess. (1963) .... 10, 17, 18

S. Rep. No. 176, 88th Cong., Ist Sess. (1963) ..........cce00e 18

10D Comg. Bee. (19GB) ...0.c.ccecsressessssnssesssesssnntniins 9, 10, 17, 18

H.R. Rep. No. 71, 80th Cong., Ist Sess. (1947) ........... 33

93 Cong. Rec. 2334-35 (1967) cceccscoscesssssssnrsnmesnnieieentaniiian 33

Rules and Regulations

PR. Clo. P. G6) ...cccccsersssscsesseesncnsigesssniinsiiaanannnnnnnn 16

PR. Cov. BP. 22012) ...0-:ccsssesecssrsesestnsenensentnaiannneee 16

2D CPR. $ TODEB(D) .cncccecsecesessessessensnsenssesiananuinnnn 28

, Re A RY 8) ee 21

vi

IN THE

Supreme Court of the United States

October Term, 1977

NO. 77-802

NortHwest Arr.ines, Inc.

Petitioner,

v.

Mary P. LaFrey, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF IN OPPOSITION

ARGUMENT

Introduction

In its apparent zeal to make this case appear worthy of

this Court’s time and effort, petitioner has found it neces-

sary to put to this Court the case, not as it actually exists,

but as petitioner wishes it existed. The facts of this case are

set forth in the district court’s extensive findings, issued

after the court had heard five weeks of testimony and had

reviewed thousands of pages of exhibits ; those findings take

up about fifty-five pages of the appendix to the petition

2

here. At petitioner’s request, many of those findings were

reviewed by the court of appeals; the court unanimously

affirmed, in a careful opinion covering ninety-six pages of

the appendix. Yet, in critical respects, petitioner pretends

that the lower courts had not made findings rejecting the

factual predicates of arguments petitioner makes here, and

pretends as well that certain legal arguments made here

for the first time by petitioner’s new counsel’ were properly

raised below.

In the sections of this brief that follow, we comment in

turn upon each of the six questions petitioner submits for

this Court’s review, in light of the facts found below. As

we demonstrate, there is nothing about this case that is

worthy of this Court’s plenary consideration.

Before turning to petitioner’s six questions, we feel com-

pelled to address certain general misimpressions that might

result from petitioner’s inaccurate and selective recitation

of what this case is about.

From the various assertions contained in the petition’s

‘‘Statement,’’ the reader could be expected to assume that

each of the following propositions is true: First, North-

west regularly employs ‘‘male ‘flight service attendants’

(‘FSA’s’), now called ‘stewards’ ’’ at the same rate of pay

as ‘‘female ‘stewardesses.* ’’ Petition (hereinafter Pet.) at

4. Second, Northwest also employs a higher rated class of

in-flight employees known as ‘‘pursers’’; the ‘‘job’’ of pur-

ser is distinguished from the ‘‘job’’ of stewardess or FSA

because the former entails ‘‘cargo handling’’ responsibility

1 Counsel on the petition were not involved in this case below.

There, Northwest was represented by Henry Halladay, David Ran-

heim, and William Martin of the Minneapolis firm of Dorsey, Mar-

quart, Windhorst, West & Halladay. App. 2a. Although that firm

continues to represent Northwest in ancillary proceedings in this

ease which are ongoing in the district court, it does not appear on

the petition.

3

and ‘‘formal, inherent supervisory authority.’’ Pet. 4, 5, 7,

9. Third, the cabin attendants’ union had, together with

the Company, addressed the issue whether the purser

‘‘job’’ was sufficiently different from that of the FSA or

stewardess ‘‘job’’ to justify a substantial pay differential,

and found that it was. Pet. 6, 7. Fourth, the Company had,

for reasons ‘‘understandable from an historical perspec-

tive,’’ restricted purser positions to men prior to 1967, and

thus fell innocently into the trap of having jobs segregated

by sex. Id. at 9. Fifth, the courts below, particularly the

court of appeals, had it in for Northwest, ‘‘adopt[ing]

standards and tests that would have the effect of inflating

backpay awards and imposing the highest conceivable lia-

bility. ’ Jd. at 10. Sixth, due apparently to this zeal of the

lower courts, but not to anything Northwest has been found

to have done, Northwest is faced with ‘‘one of the largest

judgments—and perhaps the largest—ever rendered under

the Equal Pay Act or Title VII of the Civil Rights Act.’’

Id. at 4. Seventh, the calamity which now confronts North-

west is one which Congress intended to avoid by its en-

actment, in 1947, of 29 U.S.C. § 251. Id. at 12-13.

Each of these propositions, however, is demonstrably

false.

First, it is not true that the Company has regularly

employed male cabin attendants at the same pay as

stewardesses. The Company hired its last FSA in 1957;

as of 1965 there were only three left; and as of 1970 there

were no FSAs employed by Northwest. App. 8a-9a, {fj 17-

19.? Thus, at all points pertinent to this litigation, all or vir-

tually all of the male cabin attendants were called

‘‘pursers’’; and all female cabin attendants were called

? When the Company had employed FSAs, FSAs had a contrac-

tual right to fill purser vacancies in seniority order. App. 7a, ¢ 14.

‘«stewardesses.’’?

Second, the district court found as fact that pursers and

stewardesses did not occupy separate ‘‘jobs,’’ but rather

both occupied a single job—cabin attendant—whose func-

tion was to serve and protect customers. App. 36a-37a,

%9 51-53; id. 51a, | 69. Northwest did not argue in the courts

below that ‘‘eargo handling’’ was a duty distinguishing

the purser’s work, perhaps because pursers stopped doing

it in 1948 when the Company hired ground personnel for

that purpose.* Although Northwest contended in the dis-

trict court that pursers had supervisory authority and

stewardesses did not, the district court found as fact that

pursers were not supervisors and had no ‘‘supervisory’’

responsibilities that stewardesses did not also have. See

Part II, infra.

Third, there is no evidence in this record that the union,

either separately or together with the Comnany, ever ad-

dressed the issue whether a pay differential between pursers

and stewardesses was justified by any difference in duties,

and Northwest so admitted in its reply brief to the Court

of Appeals. See part I, A, infra.

Fourth, the Company did not, in 1967, realizing the error

of its prior ways, open the higher paid, although otherwise

equal, purser classification to women. In fact, the district

court found—and Northwest did not appeal the finding—

a consistent and intentional pattern of discrimination sub-

sequent to that date denying all women access to the higher

% As of 1970, one female had, after the Company had placed

every conceivable obstacle in her path, been ‘‘ promoted’’ to a pur-

ser position. See p. 12, infra. At the time this suit was filed, North-

west employed 137 male cabin attendants, all as pursers, and 1,747

female cabin attendants, all but one classified as stewardesses. App.

8a, ¢ 19.

* Trial Tr. 2808-10 (Testimony of Northwest’s Manager of Cabin

Service).

H)

pay scale enjoyed by the men. App. 1la-22a, {] 24-38. At

the time of the district court’s decision, in 1973, there was

not a single woman purser. App. 15a, 16a-17a, J 31, 35.

Further, despite Northwest’s protestations of innocence

and ‘good faith,’’ the courts below found that Northwest

had engaged in a pervasive pattern of discrimination

against female cabin attendants affecting virtually every

aspect of the employmeut relationship. App. 22a-27a, §[ 39.

Fifth, the opinions of the courts below stand as conclu-

sive contradiction of petitioner’s suggestion that those courts

were somehow biased. Moreover, far from taking ‘‘each op-

portunity’’ to ‘‘inflat(e] backpay awards and impos[e] the

highest conceivable liability,’’ Pet. 10, the court of appeals

ruled against the plaintiffs’ position on a number of mone-

tary issues, including one which the court conceded had not

properly been preserved by Northwest.®

Sixth, the size of the judgment is simply a reflection of

the extent to which the members of the plaintiff class have

been harmed by Northwest’s unlawful conduct. After all,

this is a Company that, inter alia, paid men 20 to 55 per-

cent more than women® for performing work which has

been determined by two federal courts to be ‘‘equal’’. This

suit was filed in 1970, but Northwest did not equalize the

men’s and women’s salaries until 1976, more than two years

after the district court declared the work of pursers and

stewardesses ‘‘equal’’; indeed, some of the adjudicated

statutory violations, for which the Company has a mone-

tary liability, are still continuing; thus, the monetary

remedy here covers violations spanning more than a decade.

Furthermore, the award includes remedies for the numerous

* The court of appeals stated, with respect to that issue, ‘‘the

remedial order in this case is to make employees whole, but not

more than whole.’’ App. 91c. For other, similar rulings, see App.

72¢-73e, 77¢-78e, 81e-84e.

* App. 55a, ¢ 89.

6

other violations found below which Northwest does not seek

to have reviewed by this Court.

Seventh, 29 U.S.C. § 251 has nothing to do with this case.

That is the section in which Congress explained why it was

overturning retroactively the Supreme Court’s ‘‘portal-to-

portal’’ decisions; it has no application to any of the issues

presented herein. See part IV, infra. To date, Congress

has evinced no intention retroactively to overturn either

Title VII or the Equal Pay Act, nor to deprive victimized

employees of the statutory remedies prescribed for viola-

tions of those statutes.

I

Northwest’s first question presented is ‘‘whether the

existence of a bona fide collective bargaining agreement

treating two jobs as different and establishing wage dif-

ferentials between them precludes a finding that the jobs

are equal and that the employer has ‘discriminate[d] .. .

on the basis of sex’ within the meaning of the Equal Pay

Act’’ (Pet. 2). Under this banner, Northwest in fact ad-

vancés (as it recognizes, Pet. 19-20) two distinct legal pro-

positions:

(A) collectively bargained wage rates are ‘‘tanta-

mount to a bona fide job evaluation plan,’’ (Pet. 14),

and (Northwest says) this Court has held that wage

differentials resulting from bona fide job evaluation

cannot be invalidated under the Equal Pay Act; and

(B) if differentials are established in a good faith

albeit mistaken belief that women’s and men’s jobs are

not equal (a mistake which may result from collective

bargaining as from any other source) there can be no

violation of the Equal Pay Act, for such differentials

are based not on sex, but on a good faith mistake.

Neither proposition was timely raised in the lower courts

(indeed, the second was never raised), there is no evidence

furnishing a factual predicate for these arguments, and in

any event the arguments are, as legal propositions, frivo-

lous.

7

A. Collective Bargaining

Northwest did not argue in the district court that the

wage differential between pursers and stewardesses was

outside the reach of the Equal Pay Act because collec-

tively bargained. When it first thought of the argument,

in the Court of Appeals, it was embarassed by a threshhold

difficulty: it had introduced no evidence which suggested in

any manner that the collectively bargained wage rates had

resulted from a process ‘‘ tantamount to a bona fide job eval-

uation plan.’’ The record showed only that when Northwest

first hired men as cabin attendants, and created the purser

classification to receive them, it unilaterally established a

higher wage scale for pursers than its stewardesses enjoyed;

and that from that point on the union continually sought

and obtained ‘‘across-the-board’’ wage increases for all em-

ployees. Northwest asked the Court of Appeals to infer,

from the single fact that ‘‘collective bargaining produced

unequal rates,’’ that the company and union negotiators

‘‘must have’’ evaluated the jobs and decided they were

different.” The court quite properly concluded that the

= In its openings brief to the Court of Appeals. pp. 27, 37, where

the legal argument made its first appearance in this case, Northwest

asserted that the company and the union had ‘‘evaluated’’ the jobs

and, having ‘‘freely agreed that the positions of purser and those of

cabin attendants were not substantially identical or equal,’’ estab-

lished a ‘‘bona fide, collectively bargained job evaluation system’”’

paying pursers more than stewardesses. We responded that ‘‘there

is not one word of record evidence indicating that NWA and the

union ever compared the duties of the jobs and/or their relative

worth, let alone established a job evaluation svstem’’; that ‘‘this

record does not show any union ‘evaluation’ of the comparative

duties of the job, nor any ‘agreement’ that their duties warrant

different pay.’’ Brief for Plaintiffs, pp. 5, 45. In its reply brief,

Northwest conceded this, but argued that the Court could infer

these facts from the single fact that ‘‘collective bargaining pro-

duced unequal rates.’’ Appellant’s Combined Reply Brief and Brief

on Cross-Appeal, p. 5. The union ‘‘must have evaluated the jobs

8

inference was impermissible from a barren record (24¢c-25c).

Thus, even if there were room under the scheme of the

Act for a legal argument that wage differentials are out-

side the Act’s reach if they reflect a good faith agreement

in collective bargaining that jobs are different, Northwest

is precluded from advancing that argument by its failure to

prove the factual predicate for the argument.” But the court

below was also correct, and indisputably so, in its additional

holding that the argument is without merit as a legal propo-

sition (25¢-26c).

When Congress was considering adoption of the Equal

Pay Act, representatives of American industry sought an

exemption for wage differentials resulting from good faith

collective bargaining, arguing that bargaining partners are

in the best position to evaluate the relative worth of jobs

and their judgments should not be subjected to second-

guessing by the courts.’ The effort failed; Congress did not

... [T]he parties necessarily engaged in a comparison of job values.

No evidence suggests the contrary . .. The only possible conclusion

is that the parties were engaged in bona fide job evaluation.”’

Id., pp. 5-6.

6> Tt is of no legal significance that women constituted a majority

of the bargaining unit, but it is worth noting anyway that this fact

does not mean (as Northwest implies) that women ‘‘called the

shots’’ in negotiations. The bargaining unit was at all times affiliated

with predominantly male national unions; collective bargaining was

always managed by national union representatives who were male;

and the union’s positions in negotiations often did not reflect the

women’s interests. Northwest’s own brief to the Court of Appeals

recited two dramatic examples of this: the union’s unwillingness, in

the face of pursers’ objections, to press for equal treatment for

stewardesses who became pursers, Appellant’s Brief pp. 7-8; and

the union’s failure to seek equal pay in the 1972 and 1974 negotia-

tions, despite the pendency of this lawsuit and (by 1974) the dis-

trict court’s decision directing equalization, id. at 38. See also App.

7a, €€ 13-14; App. 9a, § 22.

7 See, e.g.. Hearings on Equal Pay Act before the Special Sub-

committee on Labor of the House Committee on Education and

9

exempt wage differentials resulting from good faith col-

lective bargaining.* Instead, Congress adopted the ‘‘mini-

mum alternative’’ sought by industry representatives :* it

deferred the Act’s effective date an additional year in the

ease of collectively bargained wage rates” to afford nego-

tiators a ‘‘grace period’’ in which to ‘‘become acquainted

with [the Act’s] demands and to make any necessary ad-

justments.’’ ** Congress also added 29 U.S.C. § 206(d) (2) to

the bill, prohibiting unions from causing wage discrimina-

tion, to assure that unions would not stand in the way of

employers’ eliminating wage differentials in collective bar-

gaining agreements which violated the Act.”

Northwest’s legal argument thus is an effort to secure

by judicial fiat what industry sought and did not get from

Congress. It is hardly surprising that all of the federal

courts—from this Court on down™—have applied the Act

to invalidate wage differentials between jobs which in fact

Labor, 88th Cong., Ist Sess., 99, 101-102, 241-242, 250-251, 186

(1963) (hereinafter House Hearings). See generally BNA Opera-

tions Manual, Equal Pay for Equal Work, pp. 63-67 (1963) (here-

inafter BNA Manual). ;

’ BNA Manual 67.

® House Hearings 251, 148.

1° Section 4 of the Equal Pay Act, not codified, Public Law 88-38,

77 Stat. 57 (1963).

11109 Cong. Ree. 9203 (1963) (Rep. Roosevelt). See also id. at

7682 (Rep. Goodell) ; id. at 9193 (Rep. Bolton) ; id. at 9196 (Rep.

Frelinghuysen) ; id. at 9199 (Rep. Griffin).

12 BNA Manual 67. See 109 Cong. Rec. 4209 (colloquy between

Reps. Goodell and O’Hara).

13 See, e.g., Corning Glass Works v. Brennan, 417 U.S. 188, 192 &

n. 4, 194, 208-209 (1974) ; Shultz v. Wheaton Glass Co., 421 F.2d

259 (3rd Cir. 1970) ; Shultz v. American Can Co., 424 F.2d 356

(8th Cir. 1970) ; Hodgson v. Sagner, Inc., 326 F.Supp. 371 (D. Md.

1971), affirmed sub nom. Hodgson v. Baltimore Regional Joint

Board, Amalgamated Clothing Workers, 462 F.2d 180 (4th Cir.

1972) ; Glus v. G. C. Murphy Co.. 562 F.2d 880 (3rd Cir. 1977) ;

Denicola v. G. C. Murphy Co., 562 F.2d 889 (3rd Cir. 1977).

10

constitute ‘‘equal work’’ notwithstanding collective bar-

gaining histories treating them as different."

B. Good Faith

The argument that if a wage differential is adopted in the

good faith but mistaken belief that jobs are different then

that differential is not ‘‘based on sex’’ and thus does not

violate the Equal Pay Act, is made for the first time in this

Court. As we explain infra, pp. 15-16, this argument, even

if it had merit, would be an affirmative defense, which

Northwest waived by not pleading. Because Northwest

never made the claim below, plaintiffs were not on notice of

any need to introduce evidence rebutting the contention,

and the lower courts had no occasion to address the conten-

tion either factually or legally. It is apparent, however,

from what the lower courts did say, that if the argument

had been made to them they would have found it factually

14Tt bears noting that Northwest’s legal argument is defective

for yet another reason: it misreads this Court’s opinion in Corning.

Northwest thinks that this Court held in Corning that wage dif-

ferentials resulting from job evaluation are per se exempt from

invalidation under the Equal Pay Act; it is that ‘‘holding’’ to

which it seeks to analogize collective bargaining. But this Court did

not hold the results of job evaluation exempt. It merely recognized

that Congress had incorporated the same standards into the Act

as are customarily employed in job evaluation programs, and that

it can thus be ‘‘anticipated’’ that differentials resulting from a

bona fide job classification program would not violate the Act.

Corning, 417 U.S. at 201, quoting the House Report. As Congress-

man Frelinghuysen, who had spearheaded the incorporation of job

evaluation standards into the Act, explained:

‘* A bona fide job classification system will normally furnish the

answer to a claim of discrimination. But in any event the Labor

Department or the employee, where an employee brings suit,

will have the burden of proving to the court’s satisfaction that

a violation has oceurred.’’ (109 Cong. Ree. 9196 (1963), em-

phasis added).

11

deficient even on the existing record.’* For those courts

made findings which are consistent only with a conclusion

that Northwest’s dual wage scale was motivated by a dis-

criminatory purpose.

The findings below establish that Northwest engaged in

a pattern of intentional sex discrimination which pervaded

virtually every aspect of the cabin attendant’s employment

relationship—a pattern which Northwest no longer disputes

in this litigation.“ One element of that pattern was North-

1 Northwest’s entire argument to the contrary is predicated upon

a single statement made by the district court in a different context

for a different purpose—a statement which will not bear the weight

which Northwest tries to pile on it. Five months after issuance of its

findings of fact and conclusions of law, the district court issued

its remedial order, which was accompanied by an explanatory

memorandum. In that memorandum, the court explained that it was

denying liquidated damages because, inter alia, Northwest had

established the ‘‘good faith’’ required by 29 U.S.C. § 260. In the

eourt’s view, Northwest had met this standard by demonstrating

that it believed in ‘‘good faith’’ that the purser and stewardess

jobs would be found not to constitute ‘‘equal work’’ within the

meaning of the Equal Pay Act (App. 1b-2b). That finding is a far

ery, however, from a finding that the Company was not motivated

by sex in deciding to pay the jobs differently. A company may be

motivated by sex in deciding to pay women less than men, and yet

believe in good faith that that decision will not contravene an Act

which is operative only if the jobs meet a statutory definition of

‘*equal work.’’ That the court found only the latter is evident from

its express findings of discriminatory motivation described in the

text.

1®* In addition to the discriminatory refusal to allow women to

attain the higher pay scale enjoyed by men, and the discriminatory

pay scales themselves, both described in the text infra, the district

court found that Northwest discriminated against female cabin at-

tendants on the basis of sex in each of the following respects: im-

posing weight limits upon women, but not men, and suspending

and firing women for being five pounds overweight while allowing

‘‘very substantially overweight’’ men to remain at work (App. 22a-

12

west’s refusal to permit women to be classified as pursers

and thus attain the higher wage scale.” Northwest went to

extraordinary lengths to block women’s access to the purser

classification, which are described in graphic detail in the

district court’s findings." The one woman who survived

this gauntlet and became classified as a purser was paid

less than her male purser contemporaries, and was ‘‘de-

moted’’ back to stewardess shortly after this suit was

filed.’ Northwest did not appeal any of these findings of

discrimination.’”

24a, ¢ 39(1)-(4); App. 58a); awarding men single rooms on lay-

overs, while requiring women to share double rooms (App. 24a,

q 39(5)-(6) ; App. 58a) ; allowing men to wear eyeglasses but for-

bidding women from wearing eyeglasses (App. 24a-25a, 4 39(7)-

(9); App. 58a) ; allowing men an unrestricted choice of carry-on

luggage, while requiring women to purchase luggage strictly pre-

scribed as to brand, size, and color (App. 25a, 4 39(10)-(11) ; App.

58a); paying men, but not women, a uniform cleaning allowance

(App. 25a, 9 39(12); App. 58a); prescribing a ‘‘chain of com-

mand’’ which precluded men from ever being subordinate to wom-

en, even when they admittedly held the same job and the women

were senior (App. 25a, 4 39(13) ; App. 58a) ; and imposing differ-

ent maximum height requirements for men and women (App. 25a,

4 39(14) ; App. 58a). Northwest appealed only some of these find-

ings to the court of appeals (App. 17c, and n. 81), and that court

found all the challenged findings amply supported by the record

(App. 40c-49c). Northwest does not seek review in this Court of

the holding that it discriminated in these respects.

16° In 1970, when this suit was filed, Northwest employed 137

male cabin attendants, all classified as pursers, and 1,747 female

cabin attendants, all but one classified as stewardesses. (App. 8a,

4 19). Between the effective date of Title VII and the filing of this

suit, Northwest had hired 118 new male cabin attendants, all as

pursers, and 2,224 female cabin attendants, all as stewardesses

(App. 9a, ¥ 20).

16° App. 9a-22a; 94 22-38; App. 33a-34a, 4 45.

1 App. 15a-17a, 44 32-35; App. 57a, 493; App. 58a, 445(d),

5(f).

1° A number of courts have held, in rejecting employer defenses

13

Of greatest importance, the district court found a total

inconsistency between reality and Northwest’s professed

reasons for paying pursers more than stewardesses. The

court found with respect to each of these proffered reasons

that Northwest’s behavior belied its claim. Thus, in each

case where a duty or responsibility was asserted to justify

a distinction between pursers and stewardesses, the court

found (1) that the duty or responsibility was performed by

stewardesses as well as pursers, and (2) that Northwest

did not pay either pursers or stewardesses any different

amount according to whether they were assigned such duties

or responsibilities. On appeal, the court below indicated its

firm conclusion that these inconsistencies reflect a discrim-

inatory purpose. In its discussion of ‘‘the guiding prin-

ciples,’’ the court stated:

‘‘The conclusion to be drawn, when any ‘of these incon-

sistent patterns exist, is that

‘{d]espite claims to the contrary, the extra tasks

were found to be makeweights. This left sex—

which ‘in this context refers to the availability of

women at lower wages than men—as the one dis-

cernible reason for the wage differential. That,

based on the ‘‘factor other than sex’’ exemption, discussed infra,

that discrimination in filling jobs which are in fact ‘‘equal work’’

is itself probative evidence that the employer was motivated by

discriminatory purpose in paying them differently. Shultz v.

Wheaton Glass Co., 421 F.2d 259 (3rd Cir. 1970), cert. denied,

398 U.S. 905 (1970) ; Shultz v. First Victoria National Bank, 420

F.2d 648, 654-655 (5th Cir. 1969) ; Hodgson v. Fairmont Supply

Co., 454 F.2d 490, 498 (4th Cir. 1972) ; Hodgson v. Security Na-

tional Bank of Sioux City, 460 F.2d 57, 61-63 (8th Cir. 1972) ;

Hodgson v. Behren Drug Co., 475 F.2d 1041, 1044-48 (5th Cir.

1973), cert. denied, 414 U.S. 822 (1973); Brennan v. Owensboro-

Daviess Co. Hospital, 523 F.2d 1013 (6th Cir. 1975), cert. denied,

425 U.S. 973 (1976). In this case, as we next recount in text, the

findings provide much more direct evidence of discriminatory pur-

pose in paying pursers more than stewardesses.

14

however, is precisely the criterion for setting

wages that the Act prohibits.’ ”’

Turning to ‘‘the case at bar,’’ the court below recounted

at length inconsistencies in Northwest’s pay practices,™

and concluded:

‘‘This evidence leads convincingly to the conclusion

that the contrast in pay is a consequence of the histori-

eal willingness of women to accept inferior financial

rewards for equivalent work—precisely the outmoded

practice which the Equal Pay ;Act sought to eradi-

cate.’’?

{n sum, if Northwest had argued below that discriminatory

vurpose was required for an Equal Pay Act violation, it is

virtually certain that the courts below would have found

such a purpose.

But even if Northwest had raised the issue in the lower

courts, and even if it were indisputable that Northwest was

not actuated by a discriminatory purpose, the legal proposi-

tion it asserts—that there can be no Equal Pay Act viola-

‘ion if the employer established the wage differential in

good faith—is demonstrably frivolous, has been uniform-

ly rejected, and does not merit consideration by this Court.

The most obvious demonstration of the fallacy of North-

west’s contention is furnished by 29 U.S.C. §260, which

defines the conditions under which an employer may escape

double damages for an Equal Pay Act violation. To invoke

the protection of §260, an employer must prove, inter alia,

that he acted in ‘‘good faith’’ in compensating the jobs dif-

‘crently. But if such ‘‘good faith’’ were intended by Con-

zress to exculpate the employer entirely, Congress would

not have made it a condition to escaping double damages.

16° App. 33e, quoting, Brennan v. Prince William Hospital Corp.,

503 F.2d 282, 286 (4th Cir. 1974), cert. denied, 420 U.S. 972 (1975).

16* App. 33e-35¢; see also App. 36c-38¢, n. 153.

1” App. 35e.

15

Northwest is in the incongruous position of arguing in Part

I of its petition that employment decisions made in ‘‘ good

faith’’ do not violate the Act at all (Pet. 13-20), while ulti-

mateiy having to confess in Part IV that the true import

of ‘‘good faith’’ is as a defense to double damages (Pet.

29-32).

That a good faith belief that jobs are different is irrele-

vant in determining whether the Equal Pay Act has been

violated is confirmed by the structure of the statute, its leg-

islative history and purpose, and its uniform construction

by this Court and the lower courts.

To begin with, it is clear that a plaintiff meets her burden

under the Equal Pay Act by proving that she is being paid

lower wages than men for equal work; her burden does not

include proving that the employer was discriminatorily mo-

tivated in establishing the wage differential. This Court so

held in Corning, noting the unanimity in the lower courts on

the point, 407 U.S. at 195-197:

The Act’s basic structure and operation are...

straightforward. In order to make out a case under the

Act, the Secretary’? must show 'that an employer pays

different wages to employees of opposite sexes ‘‘for

equal work on jobs the performance of which requires

equal skill, effort, and responsibility, and which are

performed under similar working conditions.’’ Al-

though the Act is silent on this point, its legislative

history makes plain that the Secretary has the burden

of proof on this isstie, as both of the courts below

reco

The Act also establishes four exceptions—three

specific and one a general catchall provision—where

different payment to employees of opposite sexes ‘‘is

made pursuant to (i) a seniority system; (ii) a merit

system; (iii) a system which measures earnings by

quantity or quality of production; or (iv) a differential

17 The Act is enforceable both by the Secretary (as in Corning)

and by affected employees (as here). 29 U.S.C. §§ 216(b), (c).

16

based on any other factor other than sex.’’ Again, while

the Act is silent on this question, its structure and his-

tory also suggest that once the Secretary has carried

his burden of showing that the employer pays workers

of one sex more than workers of the opposite sex for

equal work, the burden shifts to the employer to show

that the differential is justified under one of the Act’s

four exceptions. All of the many lower courts that have

considered this question have so held, and this view is

consistent with the general rule that the application of

an exemption under the Fair Labor Standards Act is

a matter of affirmative defense on which the employer

has the burden of proof. [Footnotes omitted]**

Thus, if ‘* good faith mistaken belief’’ were at all relevant

to the question whether a violation had occurred, it would

have to be as an affirmative defense under the ‘‘factor other

than sex’’ exemption. Northwest never pleaded such a

defense, indeed did not raise it in any fashion until this

Court, and thus has waived it.’* But even if such a defense

had been pleaded, Northwest would not have been helped.

18 Three members of this Court dissented from the ultimate

holding in Corning ‘‘for the reasons stated by Judge Adams in his

opinion for the Court of Appeals in Brennan v. Corning Glass

Works, 480 F.2d 1254 (CA 3 1973),’’ 417 U.S. at 210. On the point

quoted here, Jadge Adams’ opinion was in complete accord, 480

F.2d at 1258:

‘‘Once the Secretary has met his burden of showing equal

skill, effort, responsibility, and similar working conditions, the

employer, in order to prevail on the merits, must demonstrate

that the wage differential is made ‘pursuant to (i) a seniority

system; (ii) a merit system; (iii) a system which measures

earnings by quantity or quality of production; or (iv) a differ-

ential based on any other factor other than sex... .’’’ (Foot-

note omitted )

1 Rules 8(c), 12(h), F.R.Civ.P. For FLSA cases see, e.g., Bren-

nan Vv. Valley Towing Co., Inc., 515 F.2d 100, 104 (9th Cir. 1975) ;

Brennan v. Mazxey’s Yamaha, Inc., 513 F.2d 179, 184 (8th Cir.

1975) ; Mitchell v. Williams, 420 F.2d 67, 68 n. 2 (8th Cir. 1969),

and cases cited therein; Wirtz v. F. M. Sloan, Inc., 411 F.2d 56, 60

(3rd Cir. 1969), affirming 285 F. Supp. 669, 675 (W.D. Pa. 1968).

17

The language of the exemption, in relevant part, is:

‘*except where such payment is made pursuani to...

(iv) a differential b on any other factor other than

sex’’ (emphasis added).

A mistaken belief is not ‘‘a differential,’’ and a payment

made pursuant to such a belief is not a ‘‘payment ... made

pursuant to ...a differential based on any other factor

other than sex.’’ As the language clearly contemplates, an

exception depends upon the existence of an objective dif-

ference justifying the payment of higher wages to some em-

ployees than to others. And that is what Congress intended.

It placed the burden on plaintiffs to show job equality in

the four respects universally recognized as relevant in job

classification programs: skill, effort, responsibility, and

working conditions. Corning, supra, 417 U.S. at 198-201.

But Congress recognized that there might yet be other ob-

jective considerations, apart from sex, which would justify

paying some employees more than others, and the excep-

tions were designed to enable employers to avoid liability by

proving that their wage differentials were based upon such

considerations. Id. at 204. That there must be objective

factors justifying wage differentials is apparent from

each of the definitive congressional statements of the sweep

of the exceptions clause.”” Nowhere in the legislative history

is there a suggestion that an erroneous belief that job duties

are different would exonerate an employer from liability.

20 H. R. Rep. No. 309, 88th Cong. Ist Sess. 3, (1963) (hereinafter

‘“House Report”’) :

‘* As it is impossible to list each and every exception, the broad

general exclusion has . . . been included. Thus, among other

things, shift differentials, restrictions on or differences based

on time of day worked, hours of work, lifting or moving heavy

objects, differences based on experience, training or ability

would also be excluded .. .”’

Accord. 109 Cong. Rec. 9206, 9208 (Rep. Goodell); Id. at 9196

(Rep. Thompson).

18

Indeed, to so construe the Act would undermine the very

purpose for its adoption. The Equal Pay Act was economic

legislation. Its central purpoze. recognized in Corning, and

confirmed by the declaration of policy in the statute** and

by its legislative history,” was ‘‘to require that ‘equal work

will be rewarded by equal wages’,’’ 417 U.S. at 195. ‘‘ The

whole purpose of the Act was to require that these de-

pressed wages be raised,’’ id. at 207. But that central pur-

pose would be undermined if the Act were inapplicable

*1 Section 2 of the Equal Pay Act, which is not codified, provides:

‘*Sec. 2. (a) The Congress hereby finds that the existence in

industries engaged in commerce or in the production of goods

for commerce of wage differentials based on sex—

(1) depresses wages and living standards for employees nec-

essary for their health and efficiency ;

(2) prevents the maximum utilization of the available labor

resources ;

(3) tends to cause labor disputes, thereby burdening, affect-

ing, and obstructing commerce:

(4) burdens commerce and the free flow of goods in com-

merce; and

(5) constitutes an unfair method of competition.

(b) It is hereby declared to be the policy of this Act, through

exercise by Congress of its power to regulate commerce among

the several states and with foreign nations, to correct the con-

ditions above referred to in such industries.’’

Public Law 88-38 (1963), 77 Stat. 56.

22**The bill... would add one additional fair labor standard to

the |FLSA]; namely that employees doing equal work should be

paid equal wages, regardless of sex.’’ H. Rep. No. 309, 88th Cong.

Ist Sess. (1963), reprinted at 109 Cong. Rec. 9210 (1963). ‘‘The

objective of this legislation is to insure that those who perform

tasks which are determined to be equal shall be paid equal wages. . .

This bill would provide, in effect .. . that equal work will be rewarded

by equal wages.’’ S. Rep. No. 176, 88th Cong. Ist Sess. (1963),

reprinted at 109 Cong. Ree. 8914 (1963). See also 109 Cong. Ree.

8914 (Sen. Mansfield) ; id. at 9193 (Rep. St. George) ; id. at 9196

(Rep. Frelinghuysen) ; id. at 9197 (Rep. Griffin) ; #d. at 9212 (Rep.

Ryan).

19

whenever an employer believed mistakenly that jobs were

different.

In sum, even if there were evidence in the record support-

ine the belated claim of mistaken good faith, and even if the

claim were not foreclosed, there would still be no reason

for this Court to review the consistent rulings of the lower

courts that good faith does not defeat an Equal Pay Act

claim.”

The second question Northwest seeks to present here

eould be reached only if this Court were willing to reverse

numerous findings of fact entered by the district court and

affirmed by the court of appeals. Northwest -wants this

Court to decide whether two jobs can be found to require

‘equal skill, effort, and responsibility’’ within the meaning

of the Equal Pay Act when one job is that of a supervisor

and the other is that of a supervisee. But that is not what

the lower courts found to be the case here. In the district

court, Northwest contended that the purser was a super-

visor and the stewardess was not. But the district court

rejected that contention as a matter of fact, finding as fact

that: (1) the so-called ‘‘supervisory’’ duties asserted by

Northwest were assigned to and performed by both pursers

and stewardesses; (2) the ‘‘supervisory’’ duties of stew-

ardesses were the same as those of pursers; and (3) the

‘‘supervisory’’ duties, no matter by whom performed, were

not in truth supervisory—the district court invariably put

quotation marks around the word—but trivial and inciden-

tal to the main functions of the cabin attendant job—func-

23 See, e.g., Hodgson v. American Bank of Commerce, 447 F.2d

416, 422-423 (5th Cir. 1971); Hodgson v. Daisy Manufacturing

Co., 445 F.2d 823, 825 (8th Cir. 1971) ; Hodgson v. Behren Drug

Co., 475 F.2d 1041, 1047 (5th Cir. 1973), cert. denied 414 U.S.

822 (1973); Brennan v. City Stores, Inc., 479 F.2d 235, 241-242

(5th Cir. 1973).

20

tions which the court found to be virtually identical whether

performed by a purser or a stewardess.* The court of ap-

peals reviewed these firdings and found them supported by

substantial evidence. Northwest wants this Court to reverse

these fact findings.

Throughout the trial, Northwest attempted to depict

‘*purser”’’ and ‘‘stewardess’’ as two separate jobs. But the

trial court found that there was a single job—cabin attend-

ant—to which the company assigned employees denomi-

nated purser and stewardess (App. 36a, § 51) :

‘*Virtually all duties assigned to cabin attendants are

performed by all cabin attendants, regardless of classi-

fication. In general, cabin attendants are responsible

for making pre-departure checks of the cabin; greeting

and seating passengers; securing the cabin for take-off ;

providing food and beverage service; tending to pas-

senger needs; briefing passengers on emergency pro-

cedures; guiding and assisting passengers in the event

of emergencies; completing required documentation;

answering passenger questions; keeping the cabin in a

neat and orderly condition, before, during, and after

the flight ; insuring that passengers conform to required

regulations ; and deplaning passengers.’’

Neither pursers nor stewardesses, who are in a single

bargaining unit, have any of the duties associated with

supervision. They have no authority to suspend, discipline,

or even warn other cabin attendants. They have no respon-

sibility to recommend such action to their superiors. They

are not responsible for evaluating the performance of

other cabin attendants on their flights, unless specifically

requested to do so by their superiors. They do not have

authority to give other cabin attendants time off. All cabin

attendants are equally responsible for reporting acts of

misconduct by other cabin attendants to their superiors.

Not once does Northwest’s 550-page Cabin Service Man-

ual, which describes the purser and stewardess duties in

24 App. 49a-5la, J 67-69.

21

meticulous detail, refer to the purser or stewardess as

‘‘supervisor,’’ and not once does it describe any of their

duties as ‘‘supervisory.’’* Northwest has another eategory

of employees, called ‘‘inflight supervisors,’’ who do perform

supervisory duties: they evaluate and discipline pursers

and stewardesses, and conduct periodic ‘‘check rides’’ to

monitor their performance. In-flight supervisors, unlike

pursers and stewardesses, are not in the bargaining unit.

There was, of course, no claim in this case that the duties of

in-flight supervisors constitute ‘‘equal work’’ with steward-

esses.

While the assigned duties of all cabin attendants are the

same, the district court recognized that because relatively

new cabin attendants may be uncertain of their duties and

how to perform them the Company has an interest in assur-

ing that more experienced cabin attendants on the flight

help them out if they encounter any difficulties. Two cabin

attendants on each flight—one in the first class section (the

‘‘senior cabin attendant’’) and one in the tourist section

25 There are minor differences of wording in the Cabin Service

Manual and collective bargaining agreement in describing the func-

tions of pursers and stewardesses, but the district court found that

in practice the functions assigned to and performed by pursers

and stewardesses were the same. It is an obvious truism—confirmed

uniformly by the court decisions—that the reality, and not inac-

curate job descriptions, controls the question whether men and

women are performing ‘‘equal work.’’ 29 C.F.R. § 800.121; Hodg-

son v. Brookhaven General Hospital, 436 F.2d 719, 724 (5th Cir.

1970) ; Hodgson v. Miller Brewing Co., 457 F.2d 221, 227 (7th Cir.

1972) ; Hodgson v. Behren Drug Co., 475 F.2d 1041, 1049-50, n.

12 (5th Cir. 1973), cert. denied 414 U.S. 822 (1973); Brennan v.

Prince William Hospital Corp., 503 F.2d 282, 288-289 (4th Cir.

1974), cert. denied 420 U.S. 972 (1975); Brennan v. Owensboro-

Daviess Co. Hosp., 523 F.2d 1013, 1017 n. 7 (6th Cir. 1975) ;

Peltier v. City of Fargo, 533 F.2d 374, 377 (8th Cir. 1976) ; Usery

v. Allegheny County Institution Dist., 544 F.2d 148, 154 (3rd Cir.

1976), cert. denied 430 U.S. 946 (1977) ; Katz v. School District

of Clayton, Mo., 557 F.2d 153, 156 (8th Cir. 1977).

22

(the ‘‘senior in tourist’’)—are assigned this function, which

the district court characterized as ‘‘monitoring and where

necessary correcting the work of other cabin attendants.’’

App. 49a-50a, 11 67-68. The senior cabin attendant and sen-

ior in tourist positions are occupied by both pursers and

stewardesses; and on most flights both positions are occu-

pied by stewardesses. Thus the ‘‘monitoring’’ function is a

characteristic not of the purser or stewardess classification,

but of the positions of senior cabin attendant and senior in

tourist which both stewardesses and pursers occupy. Id.**

All the pursers and stewardesses who testified at 'trial

stated that the ‘‘monitoring’’ function of the senior cabin

attendant position was exactly the same whether the posi-

tion was occupied by a purser or a stewardess. And the

district court so found. App. 49a-5la, {] 67-69.

Further, there was considerable evidence that the func-

tion was a trivial one no matter by whom performed. One

witness with 244% years experierce as a purser with North-

west testified :

**Q. How often has something happened where you

have had to step into a situation to correct the

improper performance of duties by other cabin

attendants on your flights?

‘*A. Only one time since I have been with Northwest

Airlines.’’*’

Northwest never considered this monitoring responsibility

important enough to provide additional compensation to

the cabin attendants exercising it. Thus, pursers were all

26 The cabin attendant filling the senior cabin attendant position

on a flight also (1) determines time of meal service and movie

showing; (2) moves attendants from section to section to balance

workloads; and (3) gives predeparture briefings on emergency

equipment and procedures. Each of these duties is performed ac-

cording to prescribed written directives, and does not involve an

exercise of discretion on the part of the cabin attendant.

*7 Appendix in court of appeals at 524.

23

paid according to the same scale whether or not they served

as senior cabin attendant; and stewardesses were all paid

according to the same scale, which was considerably lower

than the purser scale, whether or not they served as senior

cabin attendant.” Based on all the evidence, including an

exhaustive showing of the nature of all aspects of the cabin

attendant’s job, the district court found that the monitoring

function of senior cabin attendants ‘‘whether purser or

stewardess’’ is ‘‘less important than . . . the other functions

assigned to all cabin attendants.’’ App. 51a, {69 (emphasis

added).

Northwest asserts that by quoting this finding of the

district court, ‘‘the court of appeals disparaged this super-

visory responsibility’’ (Pet. 22). But it was the evidence as

found by the district court which disparaged that responsi-

bility. And, in any event, that responsibility was not one

that distinguished pursers from stewardesses, for the

‘*supervisory’’ responsibility assigned to and performed

by pursers—be it trivial or significant—was found to be

identical to the ‘‘supervisory”’ responsibility assigned to

and exercised by stewardesses.”

28 The legal significance of this fact is aptly described by the

court of appeals at App. 31c-36c.

2° See App. 29c-33c, where the court of appeals discusses the au-

thorities and the legal principles applicable to the question whether

‘*insubstantial or minor’’ additional duties may justify paying men

more than women.

8° At one point in its petition, Northwest cites certain of the find-

ings below relating to documentary duties in support of its claim

of an ‘‘undeniable material difference between the specific func-

tions and responsibilities of pursers and stewardesses’’ (Pet. 22).

The district court made meticulous findings respecting the docu-

mentary duties of pursers and stewardesses (App. 39a-47a, ¢¢ 58-

63), all of which support its ultimate finding that pursers’ docu-

mentary duties involve no greater skill, effort or responsibility

than stewardesses’ documentary duties (App. 47a, 464). Perhaps

the most revealing demonstration of the weakness of Northwest’s

24

In sum, Northwest has attempted to dress up as an issue

of law what is in truth nothing more than a complaint about

the findings of fact made by a district court and affirmed

by a court of appeals. The courts below did not hold—as

Northwest suggests, Pet. 24—that a lieutenant and a master

sergeant perform ‘‘equal work.’’ Rather, they held that two

corporals perform ‘‘equal work.’’ Northwest thinks that the

courts below miscounted the employees’ respective stripes,

and that one in fact had more than the other. It asks this

Court to grant certiorari and conduct a recount.

The district court, finding Northwest’s violations of the

Equal Pay Act ‘‘willful,’’ applied the three-year (rather

than two-year) statute of limitations prescribed in 29 U.S.C.

§255(a). The court below affirmed. Northwest seeks review

of this holding, contending that a violation cannot be ‘‘ will-

ful’’ unless committed in bad faith. That contention is con-

trary to the construction normally accorded the term ‘‘will-

ful’’ in civil statutes, has been rejected uniformly by the

lower courts, and does not merit this Court’s attention.

**Willful, as we have said, is a word of many meanings,

its construction often being influenced by its context.’’ Spies

v. United States, 317 U.S. 492, 497 (1942). ‘* The word often

denotes an act which is intentional, or knowing, or volun-

tary, as distinguished from accidental.’’ United States v.

Murdock, 290 U.S. 390, 394 (1933). Only in certain criminal

statutes has the word been construed to mean ‘‘an act done

with a bad purpose.’’ Murdock, supra, 290 U.S. at 394;

United States v. Illinois Central R. Co., 303 U.S. 239, 242-

243 (1938).

position is that it cites documentary duty findings in support of

a claim relating to ‘‘supervision’’ while never citing the findings

in which the district court expressly found the ‘‘supervisory’’

duties to be the same (App. 49a-50a, 44 67-68).

It is one thing to require a showing of bad purpose before

criminal penalties are visited. But the stakes are quite dif-

ferent when, as here, the choice is between employees receiv-

ing wages improperly denied them and the employer escap-

ing with a windfall which Congress found to be contrary

to public policy (Corning, supra, 417 U.S. at 207). Thus

it is hardly surprising that the lower courts, in force, have

held that bad purpose is not required to activate the three-

year statute of limitations contained in 29 U.S.C. §255(a).”

While rejecting a requirement of bad purpose, the lower

courts have differed somewhat in articulating what is re-

quired to make a violation willful. This cannot avail North-

west, however, for the court below made clear that on this

*1 As this Court explained in Corning, 417 U.S. at 207:

‘*The whole purpose of the Act was to require that these de-

pressed wages be raised, in part as a matter of simple justice

to the employees themselves, but also as a matter of market eco-

nomics since Congress recognized as well that discrimination in

wages on the basis of sex ‘constitutes an unfair method of

competi : »”

32 Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139, 1142 (5th

Cir. 1971), cert. denied 409 U.S. 948 (1972); Brennan v. General

Motors Acceptance Corp., 428 F.2d 825, 828 (5th Cir. 1973) ;

Brennan v. J. M. Fields, Inc., 488 F.2d 443, 448 (5th Cir. 1974),

cert. denied 419 U.S. 881 (1974); Brennan v. Heard, 491 F.2d 1,

3 (5th Cir. 1974); Brennan v. Air Terminal Park’ng, Inc., 21

W.H. Cases 475, 482 (D.S.C. 1974), affirmed 498 F.2d 1397 (4th

Cir. 1974) ; Brennan v. Zager, 22 W.H. Cases 323, 328 (M.D. Tenn.

1975), affirmed 529 F.2d 524 (6th Cir. 1975), cert. denied 429 U.S.

821 (1976); Dunlop v. State of Rhode Island, 398 F. Supp. 1269,

1275 (D.R.I. 1975), reversed on other grounds 22 W.H. Cases

1272 (1st Cir. 1976) ; Conklin v. Joseph C. Hofgesang Co., 407 F.

Supp. 1090, 1094 (W.D.Ky. 1975) ; Pezzillo v. Gen. Tel. & Electron.

Inform. Sys., Inc., 414 F. Supp. 1257, 1269 (M.D. Tenn. 1976) ;

Dunlop v. New Hampshire Jockey Club, Inc., 420 F. Supp. 416,

423-424 (D.N.H. 1976) ; Usery v. Goodwin Hardware, Inc., 426 F.

Supp. 1243, 1267 (W.D. Mich. 1976) ; Herman v. Roosevelt Fed.

Sav. & L. Ass’n, 432 F.Supp. 843, 851 (E.D. Mo. 1977).

26

record Northwest’s conduct was ‘‘willful’’ under any of the

arguable standards; indeed, the Court below proffered a

construction of §255(a) more favorable to defendants than

that applied by most courts (App. 51c-59c).

Northwest argues (Pet. 27) that the definition of ‘‘will-

ful’’ under §255(a) must be the same as that accorded the

same term under the FLSA’s criminal provision, 29 U.S.C.

§216(a). We doubt the merit of that contention.” But even

if it had merit, it would not matter here, for the court below

found that the violation here ‘was ‘‘willful’’ even under the

§ 216(a) standard. App. 58c, n. 230."

33 § 216(a) was enacted in 1938, and § 255(a) in 1966, and there

is no evidence that in 1966 Congress was aware of, let alone in-

tended to incorporate into § 255, the meaning assigned ‘‘willful’’

under § 216(a). Moreover, as the court below recognized (App.

58e, n. 230), the ‘‘ purposes of the two sections are entirely differ-

ent’’: §216(a) punishes criminal conduct, whereas § 255(a) im-

plements ‘‘a policy to which punishment is entirely foreign’’ (id).

That Congress ‘‘used the word ‘willfully’ to describe a constant

rather than a variable in the tax penalty formula,’’ United States

v. Bishop, 412 U.S. 346, 359-360 (1973) (emphasis added), hardly

means, as Northwest suggests (Pet. 27), that Congress so intended

in civil and criminal statutes enacted 28 vears apart. Thus, while

‘*willful’’ in the criminal tax fraud statutes requires evil purpose

(as Bishop held), that same term in the civil tax fraud statutes

has been construed to require only ‘‘intentional, knowing and vol-

untary’’ conduct. Monday v. United States, 421 F.2d 1210, 1215-16

(7th Cir. 1970), cert. denied 400 U.S. 821 (1970), and cases cited

therein.

*4 The judicial definition of ‘‘willful’’ in § 216(a) has remained

constant throughout several decades. Hertz Driverself v. United

States, 150 F.2d 923, 928-929 (8th ‘Cir. 1945); Nabob Oil Co. v.

United States, 190 F.2d 478, 480 (10th Cir. 1951), cert. denied,

342 U.S. 876 (1951); Coleman, supra, 458 F.2d at 1142; United

States v. Fidanian, 465 F.2d 755, 760 (5th Cir. 1970). As stated

in Nabob, 190 F.2d at 480, to be ‘‘willful’’ under § 216(a) ‘‘ [i]t

is sufficient if the act was deliberate, voluntary and intentional as

distinguished from one committed through inadvertence, acci-

en “

27

There is, accordingly, no occasion in this case to review

the application of §255’s three-year statute of limitations.”

IV

The district court denied plaintiffs liquidated damages

for the Equal Pay Act violations, holding that Northwest

had met its burden of proving a defense under 29 U.S.C.

§ 260 (App. 1b-2b).2* The court below reversed, and re-

manded ‘‘the matter of liquidated damages in toto for

reconsideration by the District Court’’ (App. 69c). North-

west’s argument why this Court should review that ruling

rests upon a misunderstanding both of the decision below

and of § 260’s place in the FLSA legislative scheme.

Section 260 modifies the ‘‘automatic’’ liquidated damages

command of §216(b) by conferring discretion upon the

court to reduce or withhold liquidated damages,

‘‘if the employer shows to the satisfaction of the court

that the act or omission giving rise to such [FLSA]

action was in good faith and that he had reasonable

dentally cr by ordinary negligence.’’ This was the existing defini-

tion of § 216(a) in 1966, when § 255(a) was enacted. The court

below expressly held: ‘‘We reach no different conclusion in this

ease by that definition’’ (App. 58c, n. 230).

35 Northwest’s implication (Pet. 29, n. 16) that this holding re-

sulted in a 50% inflation of its liability is incorrect. The holding

resulted in backpay from 1967 to date rather than 1968 to date.

35° The term ‘‘double damages’’ conveys a distorted impression

of the potential significance of this issue; even if granted, liqui-

dated damages would have a relatively minor effect upon the total

backpay award. Only the stewardesses who affirmatively joined the

lawsuit as Equal Pay Act plaintiffs would be eligible for liquidated

damages—mere class members would not, 29 U.S.C. § 256—and liq-

uidated damages would be in lieu of interest. Brooklyn Savings

Bank v. O’Neil, 324 U.S. 697, 715 (1954). Thus, the interest award-

ed by the district court, App. ‘14b-15b, which has been accruing

and compounding for as much as 11 years, must be offset in evalu-

ating the impact of a liquidated damages award.

grounds for believing that his act or omission was not

a violation of the [FLSA]...’’

As the conjunctive ‘‘and’’ in § 260 makes clear, the em-

ployer bears the burden of proving both subjective good

faith and objective reasonable grounds;** and even then

the court retains discretion to award liquidated damages in

whole or in part.”

In the instant case, the district court apparently found

that Northwest had met both standards. That court based

its conclusion upon the following analysis (App. 1b-2b):

‘‘The Defendant did have reasonable grounds for belief

that it was not violating the Equal Pay Act. While

this Court has found as fact that the jobs of purser

and stewardess are in fact equal, it was not unreason-

able for the Company to have believed otherwise. Five

factors support this conclusion: the traditional practice

of the Company in treating the positions as unequal,

the general industry practice to the same effect, the

acquiescence of the stewardess’ bargaining representa-

tive in this arrangement, the absence of any grievances

or even suggestions from stewardesses to the contrary

prior to the present controversy, and the absence of

any clear legal precedent or guideline precisely in point.

as — finds ‘good faith’ on the part of the De-

endant....’’

Northwest asserts (Pet. 30) that the court below, in re-

versing, ‘‘held that four of these five factors were irrelevant

to the determination of reasonable, good faith belief.’’ That

8° Rothman v. Publicker Industries, 201 F.2d 618, 620 (3rd Cir.

1953). Accord: Addison v. Huron Stevedoring Corp., 204 F.2d 88,

93 (2nd Cir. 1953), cert. denied 346 U.S. 877 (1953); Caserta v.

Home Lines Agency, Inc., 273 F.2d 943, 947 (2nd Cir. 1959)

(Friendly, J.); Wright v. Carrigg, 275 F.2d 448, 449 (4th Cir.

1960) ; McClanahan v. Mathews, 440 F.2d 320, 322-323 (6th Cir.

1971) ; Richard v. Marriott Corp., 549 F.2d 303, 306 (4th Cir.

1977). See also 29 C.F.R. § 790.22(b).

** McClanahan, supra, 440 F.2d at 322-324; 29 CFR § 790.22(b).

29

is a misreading of the decision below. The court below rec-

ognized that the first four factors enumerated by the dis-

trict court were relevant to the subjective standard (good

faith), but held that in the particular circumstances of this

case they did not support the district court’s holding on the

objective standard (reasonable grounds). As the court be-

low explained (App. 66c-67c).

‘‘That an employer and others in the industry have

broken the law for a long time without complaints from

employees is plainly not the reasonable ground to which

the statute speaks. Nor is it enough that it appear that

the employer probably did not act in bad faith; he

must affirmatively establish that he acted both in good

faith and on reasonable grounds. That duty is accentu-

ated here, where the prevalence of sex-discrimination

litigation against the airline industry naturally prompts

the question whether NWA should reasonably have

known that neither its own tradition, the industry cus-

torn nor the employees’ silence was a reliable indicium

of the demands of the law’’ (footnotes omitted) .**

38 Northwest’s efforts to denigrate the significance of the consid-

eration in the last sentence of this quotation are disingenuous. (Pet.

30-31, note 17). The airline industry, en masse, witnessed the de-

mise, as sex-discriminatory, of a number of long-standing industry

practices immediately after Title VII was enacted. Northwest’s own

litigation experiences in 1965-1968 respecting two of these practices

—requiring stewardesses to retire at age 32, and earlier upon mar-

riage—are recounted in the district court’s findings (App. 25a-27a).

The ‘‘employment practices at issue in this litigation’’ (Pet. 31,

n. 17) oceurred from 1967 through 1977, and all of the lawsuits

cited by the court below were commenced prior to, or early in, this

period. The court indicated (‘‘e.g.’’) that the lawsuits cited were

merely exemplary. See, in addition, e.g., Evenson v. Northwest Atr-

lines, 1 FEP Cases 177 (E.D. Va. 1967) ; Air Transport Association

v. Hernandez, 1 FEP Cases 168 (D.D.C. 1967); Vogel v. Trans

World Airlines, 2 FEP Cases 297 (W.D. Mo. 1969) ; Lansdale v.

United Airlines, 437 F.2d 454 (5th Cir. 1971), reversing 2 FEP

Cases 462 (S.D. Fla. 1969). Two of the lawsuits cited by the court

below involved challenges to pay differentials between pursers and

30

The court below recognized, of course, that the fifth fac-

tor—the absence of any clear legal precedent or guideline

precisely in point—is relevant to the objective standard

(App. 67c). ‘‘Indeed, just that sort of employer-predica-

ment was the concern of Congress when it enacted [¢ 260]’’

(App. 68ce). But the court below observed, accurately, that

the district court had made no finding that Northwest’s

decision to pay stewardesses less than pursers was in any

way influenced by uncertainty about the law, and remanded

for the district court to address this question of fact (id).

This was no mere formality, for as the court below had

earlier noted (App. 60c), Northwest’s only witness on the

subject did not claim that the Company had been influenced

by any uncertainty in the law, but rather that the Company

had maintained the dual wage scale because it felt thai the

jobs were different ; indeed, it does not appear that North-

west sought or obtained ‘‘any sort of legal advice at all.’’

(:d.). The court’s holding that uncertainty in the law is

relevant only if it influenced the employer’s decision is in

accord with the decisions of all other Cireuits which have

addressed the question.*®

stewardesses, as Northwest recognizes (Pet. 13, note 6; but con-

trast Pet. 31, note 17), and the EEOC found reasonable cause in

1970 to believe such differentials unlawful.

*° See cases cited supra, p. 28, n. 36. See also Snell v. Quality

Mobile Home Brokers, Inc., 424 F.2d 233, 236 (4th Cir. 1970).

Mere errors of fact—i.e., a mistaken understanding of employees’

duties—does not suffice to establish a § 260 defense. An employer

is ‘‘responsible for knowing what its employees were doing,’’ Day

d& Zimmerman v. Reid, 168 F.2d 356, 360 (8th Cir. 1948). The

legislative history (described at p. 33, n. 41, infra) confirms that

§ 260 was enacted to assist employers affected by legal uncertainty.

For examples of evidentiary showings which met the objective

standard of \§ 260, see General Electric Co. v. Porter, 208 F.2d 805,

816 (9th Cir. 1953) ; Foremost Dairies v. Ivey, 204 F.2d 186 (5th

Cir. 1953) ; Fred Wolferman, Inc. v. Gustafson, 169 F.2d 759, 765

(8th Cir. 1948).

31

Finally, the district court’s opinion (App. 1b-2b) had

given no indication that it was aware that the employer’s

satisfaction of both the subjective and objective standards

did not automatically require the denial of liquidated dam-

ages, but merely triggered the ex‘stence of discretion in the

district court to ‘‘award no liquidated damages or award

any amount thereof not to exceed [double damages]”’

(¢ 260). It is not clear whether the district court recognized

that it possessed such discretion, nor, if it did, what fac-

tors influenced its exercise thereof. The court below quite

properly reminded the district court of this point and di-

rected that it be addressed on remand (App. 68c). Cf.

Albemarle Paper Co. v. Moody, 422 U.S. 405, 416-417, 422-

423 (1975).

Northwest attempts to make this perfectly reasonable

disposition appear worthy of this Court’s attention through

a misreading of § 260’s place in the legislative scheme.

Northwest argues that the court’s rejection of the first four

factors is inconsistent with the legislative concerns which

prompted adoption of § 260 (Pet. 30) :

The four factors that the court below discarded are

derived from the statute itself. In 1947 Congress gave

statutory relief for ‘‘good faith’’ acts to remove the

harshness of a liquidated damages provision that pre-

viously had been construed as mandatory. Congress

found that without the amendment the Fair Labor

Standards Act would result in ‘‘wholly unexpected

liabilities, immense in amount and retroactive in opera-

tion’? by unexpectedly overriding ‘‘long-established

customs, practices, and contracts between employers

and employees.’’ 29 U.S.C. §251(a). (Congressional

findings and declaration of policy). The amendments,

including the ‘‘good faith’’ provision of § 260, were

intended to avoid this result and to ‘‘protect the right

of collective bargaining.’’ 29 U.S.C. 4 251(a) (6). Yet

the decision below holds that (i) tradition and custom,

(ii) industry practice, (iii) the collective bargaining

agreement, and (iv) Northwest’s experience under it—

the very circumstances that Congress declared give

32

presumptive legitimacy to employment practices—are

irrelevant in applying the ‘‘good faith’’ provision of

§ 260.

The simple answer is that the decision below did con-

sider these circumstances relevant in applying the ‘‘ good

faith’’ provision of § 260; it held them irrelevant only to

the ‘‘reasonable grounds’’ provision.

There is, however, a more fundamental deficiency in

Northwest’s argument: it misconceives the significance of

the declaration in 29 U.S.C. § 251. That declaration ex-

plained not the reasons for adopting § 260, but rather the

reasons for adopting 29 U.S.C. § 252. The legislative mate-

rials make clear that the sole reason for adopting 4 260 was

to provide discretion to district courts to relieve employers

“The principal stimulus to enactment of the Portal-to-Portal

Act, as its title suggests, was the Supreme Court’s construction of

the FLSA, in three decisions, as treating time spent travelling be-

tween the employer’s gate and the workplace as time ‘‘worked.’’

In each of these decisions the Court declared it irrelevant that the

custom in American industry, confirmed in collective bargaining

agreements, was not to treat such time as time worked. Tennessee

Coal Co. v. Muscoda Local, 321 U.S. 590, 602 (1944) ; Jewell Ridge

Corp. v. Local, 325 U.S. 161, 167 (1945) ; Anderson v. Mt. Clemens

Pottery Co., 328 U.S. 680, 692 (1946). Congress responded to

these decisions by enacting 29 U.S.C. §§ 252 and 254. § 254 over-

ruled the Supreme Court’s construction of the FLSA in these cases.

§ 252 retroactively exonerated employers for antecedent violations

except in those instances where custom and/or collective bargaining

agreements had treated such time as time worked. It has been uni-

versally recognized that the findings and declaration of policy in

29 U.S.C. § 251 were addressed to these provisions, and particularly

to $252 (which, it could be foreseen, would be challenged as un-

constitutional). The ‘‘purpose’’ articulated in § 251 was ‘‘ fulfilled

by the enactment of Section 2 [§ 252].’’ Steiner v. Mitchell, 350

U.S. 247, 253 (1956). See also Battaglia v. General Motors Corp.,

169 F.2d 254, 258 (2nd Cir. 1948) ; Addison, supra, 204 F.2d at 96

(L. Hand, J., concurring).

33

of liquidated damages where they have attempted to comply

with the law but been disabled by uncertainty as to what

the law requires.**

V

The courts below ruled that the 1972 amendment to Title

VII restricting backpay awards to two years prior to the

filing of the EEOC charge is inapplicable to cases pending

in court at the time of its adoption. That ruling is in accord

with the decision of every Court of Appeals which has con-

sidered the question, and is plainly correct for the reasons

#1 As explained in H. Rep. No. 71, 80th Cong., 1st Sess. 3, 7-8

(1947), and as the court below understood, App. 64c, § 260 was a

response to the decisions of the Fourth Circuit and the Supreme

Court in Missel v. Overnight Motor Transportation Co., 126 F.2d

98 (4th Cir. 1942), affirmed 316 U.S. 572 (1942). See also 93 Cong.

Ree. 2234-35 (1947) (colloquy between Sens. Donnell and Fergu-

son). In Missel, the Fourth Circuit applied the then-mandatory

liquidated damages provision of the FLSA with the following

‘*lament,’’ 126 F.2d at 111:

‘It seems a keen injustice for employers bewildered by

strange legislation and confused by divergent authority in the

courts to be subjected to such a measure. Yet no inatter how

much we lament its harshness, the Section appears to be

mandatory and virtually all the courts have so construed it.’’

The Supreme Court, noting that the violation had stemmed from

the employer’s ‘‘inability to determine whether the employee was

covered by the Act, (316 U.S. at 582)—an inability caused by un-

certainty as to the proper construction of one of the Act’s exemp-

tions (id.)—held that ‘‘[p]Jerplexing as petitioner’s problem may

have been’’ the liquidated damages provision was mandatory (td.

at 582).

There is not a word in the legislative history suggesting that

§ 260 was to be available to employers in any circumstances other

than good faith reliance, upon reasonable grounds, on a legal con-

struction which ultimately turns out to be wrong.

42 Bing v. Roadway Express, 485 F.2d 441, 453, n. 14 (5th Cir.

1973) ; EEOC v. Detroit Edison Co., 515 F.2d 301, 315 (6th Cir.

1975), vacated and remanded for consideration of other issues, 431

34

stated in the opinion below (App. 71c-72c).

Even if the question warranted this Court’s attention in

an appropriate case—a doubtful proposition, for the num-

ber of pre-1972 lawsuits still pending surely must be small—

this is not such a case, for the decision below may yet pro-

duce a two-year limit. The court below ruled that the back-

pay limit for cases filed prior to the 1972 amendments is

‘*the period prescribed by the most analogous state statute’’

(App. 73¢). The court remanded to the district court the

determination of what state statute is most analogous,

noting that ‘‘[t]he statutes cited to us by the parties con-

tain two- or three-year limits’’ (App. 74c, n. 300).

VI

The final issue which Northwest seeks to have this Court

review is one which (1) arises out of a sui generis set of

facts which render the legal issue of no general importance,

(2) arises at an interlocutory stage, and (3) may in fact

end up without having any practical effect upon any party’s

rights or obligations. To understand why this is so, it is

necessary to describe the facts and holdings below in more

detail than Northwest does in the petition.

The district court had awarded backpay under Title VII

to all stewardesses who had flown within two years of the

filing of the charge, irrespective of whether and when they

had terminated their employment (App. 8b-9b; { 7(a)).

Northwest appealed, contending that those who terminated

employment more than 90 days prior to the filing of the

first EEOC charge no longer had Title VII claims which

they could assert on their own behalf, and thus should be

excluded from the class recovering backpay. On this issue,

Northwest prevailed in the court below. The court con-

cluded that ‘‘the District Court on remand must exclude

U.S. 951 (1977) ; EEOC v. Steamfitters Local 638, 542 F.2d 579,

590 (2d Cir. 1976), cert. denied, 430 U.S. 911 (1977).

a

35

from the Title VII recovery period those employees whose

connection with NWA was dissolved more than ninety days

before the class filing with the Commission’’ (App. 90°;

see also id. at 81c-84c).

The court was concerned, however, that some among those

to be excluded might have been misled to their detriment

by Northwest’s failure to assert a time-limits defense prior

to trial.** The district court had sent class notices long be-

fore trial, at a time when the employees in question could

still have timely joined in the Equal Pay Act portion of

this lawsuit,“* advising these employees that even if they

did not join in the Equal Pay Act portion of the lawsuit

they ‘‘would be entitled to share in any money award which

the Court grants under the Civil Rights Act’’ (App. 85c).

Northwest’s counsel, who had not asserted any defense

based on timeliness, did not challenge this wording when it

was proposed.* It is thus theoretically possible that some

employees who would otherwise have timely joined the

Equal Pay Act portion of the iawsuit refrained from doing

so in reliance upon the notices’ assurance that they would

43 Northwest never pleaded a time-limit defense. At the close of

the trial, it requested leave to amend its answer to assert that the

action was untimely (App. 90c; Trial Tr. at 3571). Even then,

Northwest did not focus a claim upon the status of those who had

terminated more than 90 days before the filing of the first EEOC

charge (Trial Tr. at 3571). Nerthwest first attacked the inclusion

of these employees in its brief on remedies, following the district

court’s issuance of its findings of fact and conclusions of law.

44 The notices were mailed in 1971. Under either a two- or three-

year statute of limitations (See III, supra), employees who had

terminated more than 90 days but less than two years prior to the

filing of the first EEOC charge (on March 28, 1970) retained time-

ly Equa) Pay Act claims.

45 Plaintiffs’ counsel tendered proposed class notices for the

Court’s consideration. Northwest filed a doeument commenting in

other respects upon the propriety of sending Plaintiffs’ proposed

notices, but did not challenge the text or ask that it be changed.

36

recover in any event, should plaintiffs prevail, under Title

VII. The court below concluded that Northwest was es-

topped by its failure to assert a time limits defense before

the notices were sent from objecting to recovery by any

employees who were ‘‘lulled into inaction on their Equal

Pay Act rights in the understanding that they would share

in any Title VII recovery’’ (App. 90c).

Accordingly, as an exception to its ruling that those who

terminated employment more than 90 days before the filing

of the first EEOC charge must be denied recovery, the

court below ruled that the district court ‘‘must retain in

the class for the Title VII recovery those employees who

would have brought themselves within the Equal Pay Act

class by filing consents’’ (App. 90c, 2e).** The court found

that the statute did not deprive it of the traditional equita-

ble power to apply estoppel principles in this manner (id.

85e- 89c). It is this construction which Northwest claims is

worthy of review.

Assuming arguendo that the question whether Title VIT’s

time limit is a ‘‘jurisdictional prerequisite’’ such that it is

not subject to ‘‘equitable modification’’ were one warrant-

ing review in an appropriate case," this is not such a case

*© The court’s original opinion had used the word ‘‘could’’ rather

than ‘‘would’’—a formulation which would have provided recovery

to all the terminated employees and which thus was inconsistent

with the clear intendment of the court’s discussion at App. 90c. The

court corrected the mistake sua sponte, App. 2e.

‘’ Northwest’s contention (Pet. 38) that this Court has already

decided this issue in favor of its position, in Electrical Workers

Local 790 v. Robbins & Myers, Inc., 429 U.S. 229 (1976), is not

supported by a reading of the opinion in that case. This Court held

in Electrical Workers that an employee’s pursuit of grievance-

arbitration procedures does not toll the time for filing an EEOC

charge. But the Court arrived at that result by carefully examining

the grounds advaneed for tolling in such circumstances, and con-

cluding that they did not meet the requirements for an equitable

37

for several reasons:

(1) This case arises on a sui generis set of facts. Indeed,

it is virtually inconceivable that the precise issue presented

here would ever recur in another case. And the peculiar

facts create substantial doubt that a resolution of this case

would have any precedential value for other cases.”

(2) It is doubtful whether any employee will in fact re-

cover backpay because of this ruling. The court has merely

provided an opportunity for former employees to attempt

to prove that they ‘‘would have’’ joined the Equal Pay Act

portion of the lawsuit but for the wording of the class

notice. We do not know whether there are any persons who

claim to have relied in this respect. And even if there are,

it is far from certain that they will ever learn of the court’s

ruling and thus be able to avail themselves of the oppor-

tunity it affords. (The affected employees terminated their

employment in 1968 and 1969, and neither plaintiffs nor

Northwest have addresses post-1969 at which to contact

them.) Thus, if this Court were not inclined to grant

certiorari on the other issues in this case, it would be a

classic instance of the ‘‘tail wagging the dog’’ to delay

further the indisputably eligible employees’ receipt of the

modification of the time limit. Had the Court’s holding been that

all equitable modifications are precluded, there would have been no

occasion to analyze in such detail the alleged justification for the

particular modification sought in that case.

48 The issue here is not whether a court has jurisdiction over an

otherwise untimely Title VII action based upon a tolling principle.

The issue here, rather, is whether, in a case over which the court

indisputably has jurisdiction, it may extend a remedy to particu »r

class members based upon estoppel. This Court has already held

that class members who did not themselves file charges may share

in Title VII recoveries—the filing of a charge is not ‘‘jurisdic-

tional’’ in that sense—and that the courts have traditional equitable

discretion in formulating class remedies for Title VII violations.

Albemarle Paper Co. v. Moody, 422 U.S. 405, 414, 416-425 (1975).

38

remedies due them to litigate this question now. If in fact

there prove to be actual claimants who prevail on this issue,

Northwest can seek review at that time without delaying

the rights of everyone else.

(3) A victory for Northwest on this issue in this Court

would be meaningless, even if such employees do exist and

come forward. For the ‘‘estoppel’’ upon which the court

below relied would support tolling of the Equal Pay Act’s

time limit just as the court found it justified equitable con-

sideration under Title VII. And there can be no question

but that the Equal Pay Act’s time limit is a traditional

statute of limitations, and thus subject to equitable tolling

principles.” Thus a reversal on this issue would result

merely in the employees’ securing recovery under the Equal

Pay Act rather than Title VII.

*° See e.g., Hodgson v. Humphries, 454 F.2d 1279, 1283-84 (10th

Cir. 1972) ; Ott v. Midland-Ross Corp. 523 F.2d 1367, 1370 (6th

Cir. 1975) ; Powell v. Southwestern Bell Telephone Co., 494 F.2d

485, 487 (5th Cir. 1974).

39

CONCLUSION

For the reasons set forth above, the petition for writ of

certiorari should be denieji. Northwest’s alternative sug-

gestion—that the Court ‘‘vacate the judgment below and

remand the case for full reconsideration in light of .. .

intervening decisions’’ (Pet. 30)—is a frivolous stalling

tactic. The Court of Appeals held the petition for rehearing

for ten months awaiting the issuance of this Court’s deci-

sions, and in denying rehearing declared that it had con-

sidered the petition ‘‘in light of . . . the decisions of the

Supreme Court of the United States subsequent to the

opinion’’ (App. 2f). The Court of Appeals was plainly cor-

rect in its assessment that none of the intervening decisions

warranted alteration of its decision; bat correct or not, the

Court below has already undertaken the ‘‘reconsideration’’

for which Northwest invites a remand. In a footnote, North-

west notes that there are yet additional Title VII and Age

Discrimination cases on the Court’s docket this term (Pet.

39, n. 28). Each of the cases cited has now been decided,

and none bears on the issues presented in the petition.

Respectfully submitted,

Micuae. H. GotresMan

Rosert M. WEINBERG

Bredhoff, Gottesman, Cohen

& Weinberg

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorneys for Respondents