# Petition — Great American Federal Savings & Loan Ass'n v. Novotny > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2013%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 442 U.S. 366 ## Text upreme Court, U. FILED NOV 6 1978 In THE MIGUAEL BODAK, JR., CLERK Supreme Court of the United States OCTOBER TERM, 1978 No. TR =7 53 GREAT AMERICAN FEDERAL SAVINGS & LOAN ASSOCIATION, JOHN A. VIROSTEK, JOSEPH E. BUGEL, JOHN J. DRAVECKY, DANIEL T. KUBA- SAK, EDWARD J. LESKO, JAMES E. ORRIS, JOSEPH A. PROKOPOVITSH, JOHN G. MICENKO, and FRANK J. VANEK, Petitioners, Vv. JOHN R. NOVOTWY, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT JOHN G. WAYMAN EUGENE K. CONNORS WALTER G. BLEIL REED SMITH SHAW & MCCLAY 747 Union Trust Building Pittsburgh, Pennsylvania 15219 Counsel for Petitioner November 6, 1978 SMITH BROS., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219 —_—— PAGE I aun vasnsscdcionenonsaiembanen 2 ie cits dlenndpnonsis Sanintisoemangibis 2 I iarccinsscnnsssnssceinsscniacenrveninsrecenacciviecess 2 Statutory Provisions Involved .....................0..0ccceeees 3 Nee. ssemasiesnnenetiauadnsinds 4 Reasons for Granting the Writ ...............0.0.......ee. 6 1. The Decision Below Conflicts With The De- cisions Of Other Courts of Appeals As To The Existence Of A Conspiracy For Pur- poses of 42 U.S.C. §1985(3) 0.0, 6 2. The Decision Below Conflicts With The De- cision Of Another Court Of Appeals As To The Use Of An Alleged Violation Of Title VII To Support A Cause Of Action Under III | Sitihinaristinciectianssniniosetcecdnewesse 9 3. The Decision Below Conflicts With The Statutory Analysis Previously Developed By This Court And Sanctions An Unconsti- tutional Application Of 42 U.S.C. §1985(3).. 11 ERE IN RCE, ee a a, ee Appendix A (Opinion of the Court of Appeals) ........ la Appendix B (Opinion of the District Court) ............ 67a Appendix C (Complaint) 0.0.0.0... ccccecceteeeeeees 77a CITATIONS CASES Alexander v. Gardner-Denver Co., 415 U.S. 36 TE RREREE St Seree A RACES Ra te Oe RO Cee a 9 Baker v. Stuart Broadcasting Co., 505 F.2d 181 (8th cg og ANOS Sn ae lle eee ret a 7 Bellamy v. Mason’s Stores, Inc., 508 F.2d 504 (4th EGRESS LES PSSA TREN ne 7 Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973)........ 10 Davis v. United States Steel Supply, 581 F.2d 335, I i i tn 10 ii Citations. CASES PAGE Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. li hin teca pia ec cect ageaitidic task AAs dnilay baie wbouande 7,8 Don v. Okmulgee Memorial Hospital, 443 F.2d 234 NE MEI i dcacsasvvediiigessviak beleabovikiesipiesdsissycot es 10 Doski v. Goldseker Co., 539 F.2d 1326 (4th Cir. I Sabie cae d agtissetlcatishnsansiscanicuabicaustpan’ woos cacecusese 11 Evans v. United Air Lines, Inc., 431 U.S. 553 (1977) 10 Girard v. 94th St. & Fifth Ave. Corp., 530 F.2d 66 (2d Cir. 1976), cert. denied, 425 U.S. 974 i EMEA SEER A RE Re PIO a 7 Goldlawr, Inc. v. Shubert, 276 F.2d 614 (3d Cir. RN ta ee Een a Eola ene 7 Griffin v. Breckenridge, 403 U.S. 88 (1971) ............ 11,13 Heart of Atlanta Motel, Inc. v. United States, 379 eT SRA RRS RE ee 12 Herrmann v. Moore, 576 F.2d 453 (2d Cir. 1978)... 7 Johnson v. Georgia Highway Express, 417 F.2d I IG ME occa ral vusancesagégeiiatessoserecassness 10 Johnson v. Railway Express Agency, 421 U.S. 464 I BC ened rte te shite de LL aes ectenads 9 Lochner v. New York, 198 U.S. 45 (1905) o......0000.... 12 McDonnell Douglas Corp. v. Green, 411 U.S. 792 BEI gE SAR SACL STS oral AE a rah a 9 McLellan v. a Power & Light Co., 545 F.2d I eas cssccearsesssecsssessusi vtvenee 7 Murphy v. Local Union No. 18, ...... F’, Supp. ........ , 99 LRRM 2074 (N.D.Ohi0 1978) ooo cccccccececeeeees 10 Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911 (5th Vir. 1952), cert. denied, 345 U.S. a To 7 Occidental Life Insurance Co. v. Equal Employment Opportunity Commission, 432 U.S. 355 (1977) 9 Richerson v. Jones, 551 F.2d 918 (3d Cir. 1977) ...... 10 Slack v. Havens, 522 F.2d 1091 (9th Cir. 1975).......... 10 United States v. Harris, 106 U.S. 629 (1883)........... 11 IN THE Supreme Court of the United States OCTOBER TERM, 1978 EAT AMERICAN FEDERAL SAVINGS & LOAN ASSOCIATION, JOHN A. VIROSTEK, JOSEPH E. BUGEL, JOHN J. DRAVECKY, DANIEL T. KUBA- SAK, EDWARD J. LESKO, JAMES E. ORRIS, J OSEPH A. PROKOPOVITSH, JOHN G. MICENKO, FRANK J. VANEK, ane Petitioners, Vv R. NOVOTNY, cast Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT The Petitioners, Great American Federal Savings & Loan Association, John A. Virostek, Joseph E. Bugel, John J. Dravecky, Daniel T. Kubasak, Edward J. Lesko, James E. Orris, Joseph A. Prokopovitsh, John G. Micen- ko, and Frank J. Vanek, respectfully pray that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Third Circuit en banc entered in this proceeding on August 7, 1978. Questions Presented. OPINION BELOW The opinion of the Court of Appeals is unofficially reported at 17 BNA FEP Cases 1252 (3rd Cr. 1978), and appears as Appendix A hereto. The opinion of the United States District Court for the Western District of Penn- sylvania is reported at 430 F. Supp. 227 (W.D.Pa. 1977), and appears as Appendix B hereto. JURISDICTION The judgment of the Court of Appeals for the Third Circuit en banc was entered on August 7, 1978. This petition for certiorari was filed within 90 days of that date. This Court’s jurisdiction is invoked pursuant to 28 U.S.C. §1254(1). QUESTIONS PRESENTED 1. Whether the officers and directors of a corpora- tion, admittedly acting only on behalf of that corpora- tion at all relevant times, can form a conspiracy for purposes of 42 U.S.C. §1985(3) ? 2. Whether an alleged violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, is a depriva- tion of “equal privileges and immunities” for purposes of 42 U.S.C. §1985(3) ? 3. Whether the commerce clause of the Constitu- tion of the United States provides a “source of congres- sional power” which makes an alleged conspiracy by a private employer to deny women their Title VII rights actionable under 42 U.S.C. §1985(3) ? Statutory Provisions Involved. STATUTORY PROVISIONS INVOLVED UNITED STATES CODE, TITLE 42 §1985. Conspiracy to interfere with civil rights (3) Depriving persons of rights or privileges. If two or more persons in any State or Territory con- spire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, or for the purpose of preventing or hindering the con- stituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice-President, or as a member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in further- ance of the object of such conspiracy, whereby ex- ercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occa- sioned by such injury or deprivation, against any one or more of the conspirators. Statement of the Case. STATEMENT OF THE CASE Respondent John R. Novotny (“Novotny”), a for- mer employee and director of corporate Petitioner, Great American Federal Savings and Loan Association (“Association”), instituted this suit in the United States District Court for the Western District of Pennsylvania on December 17, 1976. In essence, Novotny alleges that the Association and the individual Petitioners, its directors and/or of- ficers, violated Title VII of the Civil Rights Act of 1964 (“Title VII"), 42 U.S.C. §2000e, by discriminating against the Association’s female employees in promotion opportunities and related aspects of employment (App. C at 79a).1 At an unspecified meeting of the Association’s Board of Directors, Novotny allegedly protested on be- half of the Association’s female employees. At the Asso- ciation’s annual meeting, on or about January 22, 1975, the Association and its directors and officers failed to reelect Novotny as an officer and terminated his employ- ment. According to Novotny, the Association and its officers and directors took this action because of his equal employment protest. He alleges that this was in violation of 42 U.S.C. §1985(3) and Section 704(a) of Title VII, 42 U.S.C. §2000e-3 (a). The Association moved to dismiss Novotny’s com- plaint and, on April 22, 1977, the district court granted the Association’s motion and entered an order dismiss- ing the complaint (App. B at 76a). 1. References to the Appendix hereto will be des- ignated as “(App. ...... ae )”, with appropriate ap- pendix and page notations. Statement of the Case. In an opinion accompanying its April 22 order, the district court held that the only alleged act of discrimi- nation which had affected Novotny was his termination by the directors and officers. In the district court’s view, this action was not attributable to a conspiracy because the complaint alleged that “at all times relevant hereto, the individual defendants were and are acting on behalf of GAF” (App. C at 83a, 33). The Section 1985(3) cause of action was, therefore, dismissed. The district court also dismissed Novotny’s Title VII cause of action grounded upon the retaliation lan- guage of 42 U.S.C. §2000e-3(a). In the district court’s view, this provision applied only to discrimination suf- fered by an individual because he or she “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing” brought under Title VII. Novotny had never alleged that his termina- tion was connected in any way with such enforcement proceedings. Novotny therefore was not a “person ag- grieved” and not entitled to relief under Title VII ( App. B at 74a). An appeal followed the judgment of the district court and was argued before a three-judge panel of the United States Court of Appeals for the Third Circuit on February 16, 1978. It was later ordered that the parties file supplemental briefs and the case was reargued be- fore the circuit court en banc on May 11, 1978. In an opinion and judgment issued on August 7, 1978, the Third Circuit reversed and remanded the judg- ment of the district court regarding both the causes of action under Section 1985(3) and Title VII. In reversing the dismissal of the cause of action under Section 1985(3), the Third Circuit held, among “ Reasons for Granting the Writ. other things, that the directors and officers could form a conspiracy despite the allegations in the complaint; a violation of the substantive rights conferred by Title VII may be remedied under Section 1985(3) ; and the com- merce clause of the United States Constitution is the congressional source of power which makes a private conspi~acy to deny women their right to equal employ- ment opportunity actionable under Section 1985( 3). REASONS FOR GRANTING THE WRIT 1. The Decision Below Conflicts With The Decisions Of Other Courts Of Appeals As To The Existence Of A Conspiracy For Purposes of 42 U.S.C. §1985(3). The language of 42 U.S.C. §1985(3) is quite specific in its requirement that “two or more persons” must con- spire to deprive an individual of the equal protection of the laws or of equal privileges and immunities under the laws in order to establish a cause of action under that statute. Despite its acknowledgement that such a conspiracy “requires a plurality of legal personalities as one of its elements” (App. A at 51a), the Third Circuit held that concerted action by a corporation’s officers and direc- tors, working in their official capacities, can form the requisite conspiracy. In reaching this conclusion, the Third Circuit spe- cifically declined to “follow the line of cases adopting the rule that concerted action among corporate officers and directors cannot constitute a conspiracy under §1985(3)” (App. A at 55a). This “rule” has been adopt- ed, and the Third Circuit’s position has been rejected, Reasons for Granting the Writ. by every other court of appeals to consider the question. Herrmann v. Moore, 576 F.2d 453 (2d Cir. 1978) ; Girard v. 94th St. & Fifth Ave. Corp., 530 F.2d 66 (2d Cir. 1976), cert. denied, 425 U.S. 974 (1976); Bellamy v. Mason’s Stores, Inc., 508 F.2d 504 (4th Cir. 1974) ; Dom- browski v. Dowling, 459 F.2d 190 (7th Cir. 1972) (Ste- vens, J.); Baker v. Stuart Broadcasting Co., 505 F.2d 181 (8th Cir. 1974). See also McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (5th Cir. 1977) (dis- senting opinion). The decisions of the Second, Fourth, Seventh and Eighth Circuits have their origin in the holding of Nel- son Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952), cert. denied, 345 U.S. 925 (1953), that a “corporation cannot conspire with itself” and the acts of agents of the corporation are the acts of the cor- poration itself unless personally motivated. These fun- damental principles have been previously recognized by the Third Circuit in other contexts. See, e.g., Goldlawr, Inc. v. Shubert, 276 F.2d 614 (3d Cir. 1960). Officers and directors of a corporation cannot form a conspiracy, unless their actions are personally moti- vated, because their concerted activities constitute the actions of only one legal entity—the corporation. As recognized by Judge (now Mr. Justice) Stevens in Dom- browski, supra at 196, the substantive law allegedly vio- lated by the conspiracy does not alter the applicability of this combination of fundamental conspiracy and cor- porate principles in any way. The officers and directors in the instant case were not acting in their individual capacities because the com- plaint specifically alleged that they were working on behalf of the Association at all times. (App. C at 83a, Reasons for Granting the Writ. 133). The Third Circuit, however, chose to ignore the significance of this fact and the reasoning and holdings of four other federal courts of appeals which have dis- missed alleged causes of action under Section 1985(3) in identical situations. Few corporate decisions are made by one individual. The interpretation of the Third Circuit, therefore, makes virtually every such decision the product of a conspir- acy, nullifies the conspiracy requirement of Section 1985(3) and a multitude of other statutes, and inappro- priately exposes corporations to increased liability. These ramifications, together with the conflict among the circuits created by the Third Circuit’s unsupported decision justify the grant of certiorari to review the judgment below. ovens ° 9 Reasons for Granting the Writ. 2. The Decision Below Conflicts With The Decision of Another Court Of Appeals As To The Use Of An Alleged Violation Of Title VII To Support A Cause Of Action Under 42 U.S.C. §1985(3). The Third Circuit noted that 42 U.S.C. §1985(3) is remedial in nature (App. A at 29a), and the statute was intended to provide a federal remedy for conspiracies to deprive persons of equal protection and equal privileges and immunities under the law. The decision below also held, however, that a violation of a federal statute, and Title VII in particular, is such a deprivation (App. A at 36a). Although the passage of Title VII did not nullify any previously enjoyed substantive rights in the civil rights area, Johnson v. Railway Express Agency, 421 U.S. 464 (1975), Congress clearly intended the adminis- trative/judicial procedure outlined in Title VII to be the exclusive mechanism for enforcing the substantive rights granted by Title VII. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). The Third Circuit’s decision, however, would allow the right conferred by Title VII and Title VII alone— equal employment opportunity for women in the private sector—to be enforced under 42 U.S.C. §1985(3). This result would doubtlessly undermine Title VII’s emphasis on conciliation and administrative resolution of such dis- putes. See Occidental Life Insurance Co. v. Equal Em- ployment Opportunity Commission, 432 U.S. 355, 359- 360 (1977). This conclusion is not based on mere supposition because enforcing a Title VII right under 42 U.S.C. 10 Reasons for Granting the Writ. $1985(3) is much more attractive to a plaintiff, Under Section 1985(3), a plaintiff can avoid administrative compliance and obtain a longer statute of limitations,’ the right to a jury trial,’ no limitation on back pay,‘ and punitive damages. Thus, the effect of allowing Title VII rights to be enforced under Section 1985(3) will be a needless flood of federal court employment discrimination cases which could have been resolved through the administrative 2. The Third Circuit has recently held that the statute of limitations for alleged violations of the Civil Rights Acts of 1866 and 1870 occurring in the Common- wealth of Pennsylvania is six years. Davis V. United States Steel Supply, 581 F.2d 335 (3d Cir. 1978). This limitation period should be compared to the much shorter period (180 days, or 300 days in a deferral state) established by Congress for the filing of a charge with the Equal Employment os yaa Commission to enforce Title VII rights. 42 U.S.C. §2 -5(c). This Court has recently emphasized the importance of such a timely filing with the Commission. Evans v. United Air Lines, Inc., 431 U.S. 553 (1977). 3. See, e.g., Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973); Don v. Okmulgee Memorial Hospital, 443 F.2d 234 (10th Cir. 1971). There is no right to a jury trial under Title VII. Johnson v. Georgia Highway Ex- press, 417 F.2d 1122 (5th Cir. 1969); Slack v. Havens, 522 F.2d 1091 (9th Cir. 1975). 4. Title VII contains a two-year statutory limita- tion on back pay. 42 U.S.C. §2000e-5(g). 5. Unlike Section 1985(3), punitive damages are not available under Title VII. Compare ht ge A Local Union No. 18, ........ F. Supp. ........ , 99 LRRM 2074 (N.D. Ohio 1978) (Punitive damages awarded under Section 1985(3)) to Richerson v. Jones, 551 F.2d 918 (3d Cir. 1977) (Punitive damages may not be awarded in Title VII suit). 11 Reasons for Granting the Writ. and conciliatory processes of Title VII as intended by Congress. The Fourth Circuit, in Doski v. Goldseker Co., 539 F.2d 1326 (4th Cir. 1976), recognized that an interpre- tation such as the Third Circuit’s would significantly undermine the Title VII enforcement scheme. Conse- quently, that court refused to allow an alleged violation of Title VII to establish a cause of action under 42 U.S.C. §1985(3). The reasoning of the Fourth Circuit, however, was totally rejected in the decision below (App. A at 38a). This conflict provides yet another reason for the grant of certiorari to review the decision below. 3. The Decision Below Conflicts With The Statutory Analysis Previously Developed By This Court And Sanctions An Unconstitutional Application Of 42 U.S.C. §1985(3). In Griffin v. Breckenridge, 403 U.S. 88, 104 (1971), this Court held that the analysis of the existence of a cause of action under 42 U.S.C. §1985(3) requires the identification of “a source of congressional power to reach the private conspiracy alleged by the complaint.’ In Griffin the Thirteenth Amendment was identified as a constitutional source of congressional power, and the Court declined to discuss the applicability of the Four- teenth Amendment, /d. The decision below, however, did not rely on any of the enabling clauses of the Civil War constitutional 6. This portion of the analysis is to pre- vent the type of unconstitutional applications of Section 1985(3) which voided its crim counte RS. $5519. United States v. Harris, 106 U.S. 629 (1883). 12 ‘ Reasons for Granting the Writ. amendments. Rather, the Third Circuit held that the private conspiracy in this case could be reached under the commerce clause of the Constitution of the United States (App. A at 49a). This conclusion was based on the assumption that if Congress could constitutionally enact Title VII pursuant to the commerce clause, it could likewise prohibit, under Section 1985 (3), conspiracies to violate Title VII pursuant to the commerce clause. The Third Circuit, however, never examined Sec- tion 1985(3) to determine whether Congress intended it to be such a statute. To the contrary, the legislative his- tory indicates that the Civil War constitutional amend- ments are the source of Section 1985 (3) ;7 the legislative history is devoid of any mention of the commerce clause; and the commerce clause was interpreted as an extreme- ly narrow source of power for the enactment of legis- lation at that time.§ Moreover, unlike other legislation passed pursuant to the commerce clause, Section 1985(3) contains none of the constitutionally mandated jurisdictional require- ments which determine whether a defendant sufficiently affects interstate commerce to fall within the scope of this congressional source of power. Compare, e.g., the Fair Labor Standards Act, 29 U.S.C. $213, and Title VII, 42 U.S.C. §2000e(b), with 42 U.S.C. § 1985(3). See also Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 253-262 (1964). 7. Section 1985(3) originated as Section 2 of the Enforcement Act of 1871 (Act of April 20, 1871, Ch. 22, 17 Stat. 13). This Act was entitled, “An Act to Enforce the Provisions of the Fourteenth Amendment to the United States Constitution and For Other Purposes.” 8. See, e.g., Lochner v. New York, 198 U.S. 45 (1905). 13 Reasons for Granting the Writ. The commerce clause was therefore, never intended to be a source of power which determines the reach of Section 1985(3) and, without jurisdictional limitations, it cannot be used in that fashion now. Under the deci- sion of the Third Circuit, however, a plaintiff can state a Title VII-based cause of action under Section 1985 (3) against a corporate employer even though that employer fails to meet the jurisdictional standards of Title VII because it does not sufficiently affect interstate com- merce.” This unconstitutional, irrational result occurs be- cause the Third Circuit’s analysis incorrectly focused on the constitutionality of the right allegedly violated by the conspiracy—i.e. Title VII—without considering the constitutional power to protect that right from the ac- tivities of private conspiracies under Section 1985(3). The commerce clause may serve as the source of power for Title VII itself, but, as explained above, it cannot be a source of power to reach private conspiracies under Section 1985(3). Thus, this distortion of the analysis developed in Griffin allows unconstitutional applications of Sec- tion 1985(3) and greatly expands the scope of that statute despite the concerns of this Court. Griffin supra, at 101. The grant of the petition to review the decision below is, therefore, justified and necessitated by this conflict with the principles enunciated in Griffin v. Breck- enridge. 9. For example, Title VII assumes that corporate employers with fewer than fifteen (15) employees do not sufficiently affect interstate commerce, and they are therefore not subject to Title VII. 42 U.S.C. §2000e(b). Under the Third Circuit’s decision, however, these cor- porations are liable under Section 1985(3) if two or more —_— of the corporation deprive an employee of Title rights. 14 Conclusion. CONCLUSION For these reasons, a writ of certiorari should issue to review the judgment and opinion of the Third Circuit. Respectfully submitted, JOHN G. WAYMAN EUGENE EK, CONNORS WALTER G. BLEIL REED SMITH SHAW & MCCLAY 747 Union Trust Building Pittsburgh, Pennsylvania 15219 Counsel for Petitioners APPENDIX A United States Court of Appeals For Tue THIRD CIRCUIT NO. 77-1756 JOHN R. NOVOTNY, Appellant Vv GREAT AMERICAN FEDERAL SAVINGS & LOAN ASSOCIATION, JOHN A. VIROSTEK, JOSEPH E. BUGEL, JOHN J. DRAVECKY, DANIEL T. KUBASAK, EDWARD J. LESKO, JAMES E. ORRIS, JOSEPH A. PROKOPOVITSH, JOHN G, MICENKO and FRANK J. VANEK On APPEAL FROM THE UNITED STATES DISTRICT COURT For THE WESTERN DISTRICT OF PENNSYLVANIA C.A. No. 76-1580 Argued February 16, 1978 (Opinion filed August 7, 1978) Before: SEITz, Chief Judge, ROSENN and GARTH, Circuit Judges Reargued May 11, 1978 En Banc Before: SEITz, Chief Judge, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS, GARTH and HiGGINBOTHAM, Circuit Judges STANLEY M. STEIN, Esq. FELDSTEIN, GRINBERG, STEIN & McKEE Pittsburgh, Penna. 15219 Attorneys for Appellant 2a Appendix A—Opinion of the Court. EUGENE K. ConNors, Esq. WALTER G. BLEIL, Esq. REED SMITH SHAW & McCCLAY Pittsburgh, Penna, 15219 Attorneys for Appellees ABNER W. SIBAL, General Counsel JOSEPH T’. EDDINS, Assoc. General Counsel CHARLES L. REISCHEL, Asst. General Counsel LuTz ALEXANDER PRAGER Gary T. BROWN Attorneys Equal Employment Opportunity Comm. Washington, D.C. Amicus Curiae OPINION OF THE COURT ApAMs, Circuit Judge Advocacy of equal rights has seldom been a com- pletely secure vocation. Whether out of fear or for less attractive motives, certain individuals view the advance of equality as a threat to be opposed. Those who take up the cause of equal rights run the risk that their persors and property will suffer the consequences of their opponents’ hostility. In days past, this risk ex- posed individuals to serious harm. Harassment was routine; more serious threats and physical injury were not uncommon. Fortunately, however, such flagrant re- taliation has largely subsided. In this case we are called upon to determine whether statutory provisions which 3a Appendix A—Opinion of the Court. did service against the violent assaults on equal rights advocates in earlier times or other, comparable, leg- islative enactments can guard against less dramatic retribution. The precise issue here is whether 42 U.S.C. § 1985(3) and 42 U.S.C. §2000(e) (Title VII) protect an employee who claims to have been discharged because his actions and advocacy stood in the path of a plan to deprive women of their equal employment rights. I. Facts John R. Novotny, the plaintiff, began work with Great American Federal Savings and Loan Association (GAF) in 1950. During subsequent years he rose through the ranks to become the Secretary of the com- pany and a member of its board of directors. In the course of his employment, Novotny alleges that he dis- covered that the individual defendants in this action, officers and board members, “intentionally and delib- erately embarked upon and pursued a course of conduct the effect of which was to deny female employees equal employment opportunity.’’! 1. According to the complaint: Said course of conduct was characterized by some or all of the following actions, inter alia: (a) Promoting male employees with less experi- ence, fewer years of service and less qualifica- tion over more qualified female employees; (b) Providing education and training to male em- ployees which was not provided to female em- ployees; (c) Making known to male employees job vacancies were not made known to female employees; (d) Evaluating male employees in accordance with different and subjective criteria than those ap- plied to female employees; Appendix A—Opinion of the Court. During the summer of 1974, the GAF board of di- rectors became engaged in a dispute with one Betty Batis, a female employee, who claimed to have been the victim of sex discrimination. According to No- votny’s complaint, he took up Batis’ cause at a subse- quent board meeting and expressed the view that GAF had not met its legal obligations with regard to equal employment opportunity. The other members of the board voted in January 1975 to terminate Novotny’s employment with GAF. On the basis of that termination, Novotny promptly filed an unlawful employment practice charge with the EEOC, and was granted a right to sue letter in December of 1976. Claiming that his dismissal was a reprisal for his advocacy of the cause of equal rights for women in the corporation, Novotny then brought the present action against GAF, officers of the company and individual members of the board of directors.2 Novotny alleged (e) Categorizing certain jobs as “male” or “female” and promoting in accordance with these cate- gories; (f) ribose an atmosphere inimical to the aspera- tions of female employees than to male em- ployees; (g) By providing different and lesser degrees of fringe benefits to female employees than to male employees; (h) By demoting qualified female employees and replacing them with less qualified male em- ployees. 2. The complaint named John A. Virostek, Chair- man of the Board, Joseph E. Bugel, Vice Chairman of the Board, John J. Dravecky, Vice President of GAF, Daniel Kubasak, President of GAF, John Micenko, Treasurer of GAF, Frank Vanek, Controller of GAF, James Orris, former President of GAF, and Joseph Pro- 5a Appendix A—Opinion of the Court. that the retaliatory discharge imposed upon him con- stituted an infraction of Section 2 of the Ku Klux Klan Act of 1871,3 and Title VII of the Civil Rights Act of 1964.4 Pursuant to a motion filed under Rule 12(b) (6), the district court dismissed both of Novotny’s claims. Because the individual defendants were employees of a single corporation, the trial judge held that they were legally incapable of conspiring in violation of § 1958(3). And, in the court’s view, Title VII offered the plaintiff no protection because Novotny had not been discharged as a result of any involvement in a formal EEOC pro- ceeding. Novotny’s timely appeal brought the case before us. kopovitsh, a member of the Board of Directors. We were informed at oral argument that a similar sex-discrimina- tion suit is currently pending in the district court on be- half of Ms. Batis. 3. 42U.S.C. § 1985(3) (1970) reads: If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; ... if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exer- cising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occa- sioned by such injury or deprivation, against any one or more of the conspirators. 4. 42U.S.C. § 2000e et seq. (1970). Appendix A—Opinion of the Court. Ul. THe Conspmacy Counts: § 1985(3) Defendants challenge the plaintiff's § 1985(3) claim on three grounds. They allege that: (1) as a matter of statutory construction, § 1985(3) confers no redress for grievances such as the one in this case; (2) as a matter of constitutional law, if such redress is provided then § 1985(3) would exceed the powers of Congress; (3) as a matter of definition, officers and directors of a single corporate entity are legally incapable of forming a “conspiracy.” Both in briefs and at oral argument, the parties have occasionally combined discussion of the first and second grounds of objection, However, Congress’ inten- tion with respect to the coverage of § 1985(3) is a dis- tinct issue from Congressional power under the Consti- tution to pass such legislation. Clear analysis therefore requires that the issue of the intended scope of the legislation and its proper construction be examined separately from the question whether such scope is constitutionally authorized. Since defendants’ success on the statutory construction issue would obviate the need to explore an unsettled area of constitutional law, we turn first to an examination of the statutory structure. A. Background: An Overview of the History of § 1985(3) The statute now codified as 42 U.S.C. § 1985(3) began its existence as a part of Section 2 of the Act of April 20, 1871 (the Ku Klux Klan Act.5 The 1871 Act 5. Section 2 as quoted in Brawer v. Horowitz, 535 F.2d 830, 837-38 n.15 (3d Cir. 1976) in its entirety is re- produced as appendix I to this opinion. 7a Appendix A—Opinion of the Court. was one of several Congressional reactions to the con- tinued violent resistence to Reconstruction in the South.® Consideration of the Act was triggered by a message sent to Congress by President Grant on March 23, 1871, warning that “[a] condition of affairs now exists in some States of the Union rendering life and property insecure and the carrying of the mails and the collection of the revenue dangerous,” and calling for legislation to remedy this situation.7 The (Congres- sional response embodied in the 1871 Ku Klux Klan Act included the grant of a civil cause of action against those who deprived persons of constitutional rights under color of state law (later codified as 42 U.S.C. § 1983), the authorization of deployment of federal troops and suspension of habeas corpus in certain situ- ations, and the establishment of criminal penalties for conspiracies to obstruct justice and to interfere with “equal protection” or “equal privileges and immunities.” In section 2 of the legislation, the predecessor of § 1985(3), Congress also created a cause of action for persons injured by acts done in furtherance of such conspiracies. With the cooling of Reconstructionist ardor, the re- ception accorded to the Ku Klux Klan Act in the courts was not a hospitable one. In United States v. Harris,8 the Supreme Court sustained a demurrer to an indict- ment, under the Act’s conspiracy provisions, of 20 southern whites charged with lynching a black, and de- clared such criminal penalties unconstitutional as a 6. See Monroe v. Pape, 365 U.S. 167, 177-180 (1961). 7. Id, 172-73 8. 106 U.S. 629 (1882). See also United States v. Cruikshank, 92 U.S. 542 (1875). 8a Appendix A—Opinion of the Court. usurpation of the states’ role in protecting liberty and property. This holding was reaffirmed by Baldwin v. Franks,° which granted habeas corpus to a member of a group of Californians who had driven resident Chinese aliens out of town in violation of the treaty rights of the Chinese citizens, While conceding that the federal gov- ernment might have the power to protect treaty rights through criminal sanctions, the Supreme Court held that since the criminal provisions protected all privileges and immunities they were invalid. Following Harris and’Baldwin, Section 2 of the 1871 Act languished largely unused for seventy years.!° 9. 120 U.S. 678 (1887). 10. See e.g. Gressman, The Unhappy greet of Civil Rights Legislation, 50 Mich, L. Rev. 1323 (1952) ; Note, Federal Power to Regulate Private Discrimina- tion; The Revival of the Enforcement Clauses of the Re- construction Era Amendments, 74 Col. L. Rev. 449, 451- 54 (1974); Note, The Proper Scope of the Civil Rights Acts, 66 Harv. L. Rev. 1285, 1286-87 (1953) ; Develop- ments in the Law—Section 1988 and Federalism, 90 Harv. L. Rev. 1133, 1153-1161 (1977). A sign of possible resurrection appeared in Hague v. CIO, 307 U.S. 496 (1939), where a divided Supreme Court, relying on the predecessors to § 1983 and § 1985 (3), granted relief against discriminatory action by a city to harass political meetings, The Court acted either on the ground that the right to assemble and discuss matters relating to national issues (here the NLRA) was a privilege and immunity of national citizenship (opinion of Justice Roberts) or on the ground that the action denied equal poring (opinion of Justice Stone). The promise of Hague remained largely unful- filled, however. Moreover, Snowden v. Hughes, 321 U.S. 1, 8-12 (1944), tne Supreme Court held that § 1985 (3) reached only “intentional or purposeful discrimina- tions between persons or classes;” rather than simply denials of right. 9a Appendix A—Opinion of the Court. And in 1952, the Supreme Court further cut back on the statute’s apparently broad scope in Collins v. Hardy- man.11 In response to a claim under the civil conspiracy provisions originally contained in the Act, the Court held that the 1871 Act protected only against depriva- tions of rights brought about by state action.12 There the matter rested until 1971, when the Supreme Court gave new life to the civil conspiracy provisions of the Ku Klux Klan Act [now recodified as 42 U.S.C. § 1985 (3) ] in Griffin v. Breckenridge.13 In Griffin, the three black plaintiffs were attacked and beaten on a highway in Mississippi by whites who were under the mistaken impression that their victims were associates of a civil rights worker. The blacks brought suit against their assailants under § 1985(3), claiming to have been deprived of various privileges and immunities under the laws of the United States and the State of Mississippi, including the rights of free speech, assembly, association, movement, liberty and security of their persons. The suit was dismissed in the district court, and on the basis of Collins the Court of Appeals reluctantly sustained the dismissal. The Supreme Court, however, reversed. First the Court explained that the constitutional difficulties which shaped the result in Collins twenty years earlier had been dissipated by intervening cases, It then held that, at least in a situation where the right to interstate travel is implicated or where a federal power to abolish the badges and incidents of slavery 11. 341 U.S. 651 (1951). ‘j 12. Id. at 659, 661-62. 13. 403 U.S. 88 (1971). 10a Appendix A—Opinion of the Court. under the Thirteenth Amendment can be invoked, no state action is required to establish the constitutional power to regulate private activity.14 The Court pro- ceeded to examine the legislative history of § 1985(3), and, finding no reason to decline to accord the terms of the statute their full sweep, sustained the plaintiffs’ claim. Nonetheless, Griffin expressed sensitivity to the potential that the expansive syntax of § 1985(3) would give rise to a “general federal tort law.” To guard against this possibility, the Court looked to the legis- lative history, which had stressed the adoption of lan- guage regarding “equal protection of equal privileges | and immunities” as a limitation on the reach of § 1985(3).15 Read in light of this history, a»cause of action based on a conspiracy to deprive one of equal pro- tection or equal privileges and immunities requires that there must be some racial, or otherwise class based, 14. The Court stated that “many of the constitu- tional problems perceived [in Collins] simply do not exist.’”’ 403 U.S. at 96-97. Later in the opinion, the Court undertook an sey oy of the basis for Congressional power to regulate the conduct at issue. It concluded that Congress was authorized to deal with private conspira- cies to assault blacks on the highways both under the enforcement clause of the 13th Amendment, and under the pe of the national government to protect the right of interstate travel. Jd. 104-106. The defendants contend that both of these bases were necessary to the outcome of Griffin. Our reading of the case is that the 13th Amendment and the right to travel were alternative rationales. See id. at 107. (‘In identifying these two constitutional sources of congres- — power, we do not imply the absence of any other.’’) 15. Id. at 102 (emphasis in original). lla Appendix A—Opinion of the Court. invidiously discriminatory animus underlying the con- spirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by law to all.16 B. The Reach of § 1985(3) (1) Class Based Animus , Despite the broad wording of the statute, the Su- preme Court avoided interpreting § 1985(3) as a “gen- eral federal tort law . . . by requiring, as an element of the cause of action, the kind of invidiously discrim- inatory motivation stressed by the sponsors of the limit- ing amendment.”17 And in § 1985(3) litigation subse- quent to Griffin, the element of class-based invidiously discriminatory animus has, in the words of one com- mentator, acted as a “threshold requirement,’’18 screen- ing out a variety of § 1985(3) claims at an early stage.19 16. See id. 17. Id. 18. Note, Civil Rights—State Action is a Require- ment for the Application of § 1985(83) to First Amend- ment Rights, 54 N.C. L. Rev. 677, 683 (1977). 19. H.g. Dacey v. Dorsey, 568 F.2d 275 (2d , 1978) (individual who sued bar association slnetered failure of members of bar association to recuse them- selves from his case; no class based discrimination al- leged); Jennings v. Shuman, 567 F.2d 1213 (3d Cir. 1977) (no class base alleged for malicious prosecution) ; Meiners v. Moriarity, 563 F.2d 343 (7th Cir. 1977) (false arrest suit alleged no class-based animus); Regan v. Sullivan, 557 F.2d 300 (2d Cir. 1977) (false arrest suit alleged no class-based animus); Atkins v, Tanning, 556 F.2d 485 (10th Cir. 1972) (no class-based animus al- leged in false arrest suit); Phillips v. Intl. Assn. of Bridge Workers, 556 F.2d 939 (9th Cir. 1977) (dissident Appendix A-—-Opinion of the Court. In determining the applicability of § 1985(3) to the case before us, therefore, an initial inquiry must be whether the actions which form the basis for this case are the off-spring of a “class-based invidiously discrim- inatory animus” within the meaning of the Griffin test. (a) Women as a class (i) Women Were Not Excluded from § 1985(3) As an opening thrust, defendants urge that, when read in its historical context, § 1985(3) could not have union members not a class) ; Morgan v. Odem, 552 F.2d 147 (5th Cir. 1977) (“newcomers” not a class) ; Askew v. Bloemker, 548 F.2d 673 (7th Cir. 1976) (suit for il- legal search of home alleged no class-based animus) ; McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (5th Cir. 1977) (en banc) (bankrupts not a class) ; Brawer v. Horowitz, 535 F.2d 830 (3d Cir. 1976) (no allegation of class-based conspiracy) ; Hahn v, Sargent, 523 F.2d 461 (1st Cir. 1975) cert. denied 425 U.S. 904 (1976) (no class-based animus alleged in attempt to damage political career); Harris v. Brooks, 519 F.2d 1358 (1st Cir. 1975) (homeowners affected by zonin changes not a class); Arnold v. Tiffany, 487 F.2d 21 (9th Cir. 1973) cert. denied 415 U.S. 984 (1974) (news- paper dealers desiring to form a trade association not a class); Hughes v. Ranger Fuel Corp., 467 F.2d 6, 8-10 (4th Cir. 1972) (company’s action against environmen- talists held a response to individual’s actions, not class- based) ; Jacobson v. Industrial Foundation, 456 F.2d 258 (5th Cir. 1972) (applicants for workman’s compensa- tion are not a dealt: Cf. Downs v. Sawtelle, 77-1260 (1st Cir. March 30, 1978) slip op. (deaf may not be a class) ; See generally Note, The Scope of Section 1985 (3) Since Griffin v. Breckenridge, 45 Geo. Wash. L. Rev. 239, 252-58 (1976) (discussing cases); Note, Private Conspiracies to Violate Civil Rights, 90 Harv. L. Rev. 1721, 1727-29 (1977) (discussing cases). 13a Appendix A—Opinion of the Court. contemplated punishing conspiracies against women. Therefore, they suggest, sex-based conspiracies cannot form the predicate for a cause of action under § 1985 (3). While some of the individuals who voted for § 1985(3) may not have been sympathetic to equal rights for women,2° the interpretation of statutes is not, in the face of contrary language, tied to the subjec- tive expectations of particular legislators. The fact is that the wording of § 1985(3) gives no basis for exclud- ing women from its protection—rather, the phrases of the statute are attuned to the evolving idea of equality. Section 2 of the Act was cast in general terms; it proscribed conspiracies aimed at depriving “any person or any class of persons” of equal protection and equal privileges. The breadth of such language was not ad- ventitious. While the impetus toward enactment of the * lineal ancestor of § 1985(3) was supplied by concern regarding violence directed at blacks and Union sym- pathizers,?! the bill subsequently enacted contained no 20. Of. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873). Concurring in the decision to uphold the refusal of the Illinois Supreme Court to admit women to its bar, Justice Bradley, joined by Justices Swayne and Field — other two dissenters in the Slaughterhouse Cases) wrote: [T]he civil law, as well as nature herself has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. 21. Monroe v. Pape, 365 U.S. 167, 178 (1961). 14a Appendix A—Opinion of the Court. such limitations.22 As Judge Aldisert noted in Brawer v. Horowitz,23 Senator Edmunds, in reporting the amendments of the Ku Klux Klan Act to the Senate, interpreted the Act to command that: If...it should appear that this conspiracy was formed against a man because he was a Democrat, if you please, or because he was a Catholic, or because he was a Methodist, or because he was a Vermonter...this section could reach it.24 Consequently, we find it difficult to conclude that Congress affirmatively intended to exclude women from protection. Indeed, the sole specific reference to women 22. Congressional Globe, 42d Cong., 1st Sess. (1871) [hereinafter, Cong. Globe] at 484. Indeed, in op- position to the Act, Representative Harris admitted that ‘There is one good feature in this bill; that is, it applies to all.” eae tte Shellabarger, the Chairman of the House Select Committee which drafted the Ku Klux Klan Act and a prime spokesman for the Bill’s propo- nents in the House, first made this point with relation to its first section, later to become § 1983. Cong. Globe at App. 68. He reiterated, however, that “The provisions of the 14th Amendment are wholly devoted to securing the equality and safety of all the people, as is this section, and indeed the entire bill... .” Jd. 23. 535 F.2d 830, 839 (3d Cir. 1976). 24. Cong. Globe at 567. See also Griffin, 403 U.S. at 102 n.9; Representative Kelley at Cong. Globe 339 (“A government that cannot protect the humblest man within its limits, that cannot snatch from oppression the feeblest woman or child is not a government.”’) ; Representative Sumner id. at 651 (“Let the humblest citizen in the remotest village be assailed in the enjoy- _ ment of equal rights, and the nation must do for that humblest citizen what it would do for itself... Equality aes universality, and what is universal must be na- tional.”’). 15a Appendix A—Opinion of the Court. \ that we have been able to discover in the legislative history implies to the contrary. In the debate on the scope of the term “privileges and immunities,” in the proposed § 2 of the 1871 Act, Senator Trumbull sought to prove that the right to vote was not a “privilege or immunity” because women could not exercise the franchise.25 The burden of his argument seems to have been that women were protected in the enjoyment of rights which could properly be classified as “privileges and immunities” and therefore rights from which wom- en were admittedly excluded could not be “privileges and immunities.” The underlying premise of this rea- soning was that women are within the reach of § 2.76 25. Cong. Globe at 576. A similar theory was adopted in Minor v. Happersett, 88 U.S. (21 Wall) 162, 169-70 (1874) upholding a denial of female suffrage, The plaintiff, said the Court has always been a citizen from her birth, and en- titled to all the privileges and i amunities of citzen- ship. .. .“If the right of suffrage is one of the nec- essary privileges of a citizen of the United States, then the Constitution and laws of Missouri, confin- ing it to men are... void. | The Court concluded that voting was not such a privilege or immunity. 26. Our conclusion that women were not excluded from § 1985(3) is buttressed by the interpretation which courts have accorded § 1983. As has been often noted, § 1983 constituted the first section of the Ku Klux Klan Act, which also included the ancestor of § 1985(3). E.g. Monroe v. Pape, 365 U.S. 167, 180-81 (1961), id. at 199-202 (Harlan, J. gree ; id, at 229,234 (Frank- furter, J. dissenting); Monell v. Denartment of Social Services, 46 U.S.L.W. 4569, 4572-73 (1978). Cf. Cary v. Piphus, 46 U.S.L.W. 4224, 4226 n.10 (1978) (construing $ 1985(3) and § 1983 in a materia). The fact that the Supreme Court has had no difficulty in entertaining claims of sex discrimination under $ 1983 makes it diffi- 16a Appendix A—Opinion of the Court. The history of the statute thus leads us to determine that the language of § 1985(3) should not be unnatur- ally cropped to exclude women from its protection. Chief Justice Warren wrote in a comparable con- text :27 Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But com- munity prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same pro- tection. (ii) Discrimination against women is “in- vidious class-based” discrimination Although we can ascertain that § 1985(3) was in- tended to have a rather broad sweep, it is nonetheless difficult to parse the precise dimensions of the “classes” cult to conclude that Congress intended to exclude women from protection under § 2 of the 1871 Act. F.g. Monell v. Department of Social Services, 46 U.S.L.W. 4569 (1978); Craig v. Boren, 429 U.S. 190 (1976) re- versing Walker v. Hall, 399 F. Supp. 1304, 1306 (W.D. Okla. 1975) (relief sought under § 1983). 27. Hernandez v. Texas, 347 U.S. 475, 478 (1954) (holding that jury discrimination against Mexican- Americans was equal protection violation). The Con- gressmen who enacted § 1985(3) were not oblivious to the possibility that altered social circumstances could bring oppression upon new classes in society. See Sena- tor Ames, Cong. Globe 570: (“Man changes so little in centuries even that political creeds are visited by the same punishments that Christianity received at pagan hands in ages past.’’). an Appendix A—Opinion of the Court. = which the Congress sought to protect, for, as the Su- preme Court noted in Tenney v. Brandhove, “The limits of §§ 1 and 2 of the 1871 statute out in debate,’’28 +. Were not spelled In interpreting the lan guage of the stat Supreme Court in Griffin said: ee The language requiring intent to deprive of equal protection, or equal privileges and immunities means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.29 We need not determine here what classes other than those distinguished by race or gender may be within the ambit of § 1985(3). The Court in Frontiero v. Richardson39 remarked: “Congress itself has cluded that classifications based upon sex are sietaatie invidious.” And in discussing discrimination, the wa pointed out that sex, like race and national origin, is an immutable characteristic determined by the aa. dent of birth and that the sex characteristic frequent] bears no relation to ability to perform or B nteibvuts to society.31 Thus, to deprive members of a class found- peclag gender of equal protection or equal privileges - _iImmunities without any justification is to act in irrational and odious manner—hence, with an i vidiously discriminatory animus.32 a 28. 341 U.S. 367, 376 (1951 29. 403 U.S. at 109. . 30. 411 U.S. 667, 687 (1973) (plurality opinion). 31. See e.g., Kah : Reed v. Reed, 404 U.S. 71 (1971) 416 US. 851 (1974) ; 32. E.g. Arnold v, Tiffany, 359 F (C.D. Cal.), aff’d on other grounde, is7 Fog mg (9th 18 Appendix A—Opinion of the Court. The principle that individuals should not be dis- criminated against on the basis of traits for which they bear no responsibility makes discrimination against individuals on the basis of immutable characteristics repugnant to our system.33 The fact that a person bears no responsibility for gender, combined with the pervasive discrimination practiced against women, 4 and the emerging rejection of sexual stereotyping as incompatible with our ideals of equality?5 convince us that whatever the outer boundaries of the concept, an animus directed against women includes the elements of a “class-based invidiously discriminatory” motivation. We therefore join the two circuits that have in- cluded sex discrimination within the categories of ani- mus condemned by § 1985(3) .36 Cir. 1973), cert. denied 415 U.S. 984 (1974) ( class of newsdealers who wished to form trade association held not to be a “class” within the meaning of § 1985(3) ) ; Harrison v. Brooks, 519 F.2d 1358 (1st Cir. 1975) (class of homeowners adversely affected by zoning change held not to be a “class” within the meaning of § 1985(3) ). 33. See e.g., Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972). Cf. Murphy v. Mt. Carmel H.S., 543 F.2d 1189 (7th Cir. 1976) (suggests that non- union members subject to discrimination cannot consti- tute a class under Griffin because constituency of a union is dependent on circumstances). 34. See e.g. Frontiero v. Richardsoi, 411 U.S. 677, 684-87 (1973). 35. See e.g. Craig v. Boren, 429 U.S. 190, 198-99 (1977). 36. Conroy v. Conroy, No, 77-1343 (8th Cir. 1978), slip op. at 3 (explicitly recognized a sex discrimination claim under § 1985(3)). And while in Cohen v. Illinois Inst. of Technology, 524 F.2d 818 (7th Cir. 1975), cert. denied 425 U.S. 943 (1976) (Stevens, J.), the Seventh 19a Appendix A—Opinion of the Court. (b) Novotny’s Standing Even if sex discrimination is an “invidious clasc- based animus” within the intendment of Griffin, the defendants argue, Novotny has no standing to raise a § 1985(3) claim, since as a male, the animus toward females was not directed at him. We believe, however, that this claim is at odds with the statutory language, purpose and legislative history. Section 1985(3) provides for a cause of action in any instance where “in furtherance of the object of” a proscribed conspiracy an act is done “whereby an- other is injured in his person or property.” By its terms, the statute gives no hint of any requirement that the “other” must have any relationship to the Circuit rejected a sex discrimination claim grounded directly on a violation of the Fourteenth Amendment because of a lack of what it regarded as the requisite state action, dicta in subsequent cases consistently list “sex” as a “class” cognizable under Griffin, Meiners v. Moriarity, 563 F.2d 343, 348 (7th Cir. 1977) ; Murphy v. Mt. Carmel High School, 543 F.2d 1189, 1192 n.1 (7th Cir. 1976) ; Askew v. Bloemker, 548 F.2d 673, 678 (7th Cir. 1976). Cf. Girard v. 95th St. & Fifth Ave. Corp., 530 F.2d 66 (2d Cir.), cert. denied 425 U.S. 974 (1976) (dis- missing sex discrimination claim on the ground that no conspiracy was present) ; Weise v. Syracuse University, 522 F.2d 397 (2d Cir. 1975) (reversing dismissal of § 1985(3) sex discrimination suit for want of state action, but reserving question of whether sex discrimi- nation comes within statute); Canavan v. Beneficial Finance Corp., 553 F.2d 860 (3d Cir. 1977) (reversing on procedural grounds dismissal of sex discrimination suit under § 1985(3)); Doski v. M. Goldseker Co., 539 F.2d 1326, 1334 (4th Cir, 1976) (dismissing complaint on statutory preemption grounds); Baker v. Stuart Broadcasting Co., 505 F.2d 181 (9th Cir. 1974) (dismiss- ing sex discrimination claim on the ground that no con- spiracy present). 20a Appendix A—Opinion of the Court. “person or class of persons” which the conspiracy seeks to deprive of equal protection, privileges or im- munities. . Nor does the legislative history betray any in- timation that a cause of action under § 1985(3) pre- supposes membership in the class against which the conspiracy is directed. As Senator Edmunds stated: “This section gives a civil action to anybody who may be injured by the conspiracy.”37 Likewise, the testi- mony regarding the problems which the Act attempted to solve is replete with references to individuals in situations analogous to that of Novotny. Representa- tive Buckley adverted to the fate of “William C. Luke, an educated man from the North who spoke several languages, and who was an enthusiast on the subject of educating and elevating the colored race.”38 Mr. Luke, apparently a white man, was hanged at midnight by the Ku Klux Klan for his activities. Representative Shellabarger referred to one Mr. Allen, by all indica- tions a white man, who was “shot at and banished for teaching colored children to read,”3® and to Reverend Corless, likewise apparently not a black man, a min- ister sent from Philadelphia to “preach to the colored men,” who was “scourged near unto death.”49 Jd, Sum- marizing the activities of the Ku Klux Klan, Repre- sentative Perry declared: Their operations are...directed chiefly against blacks and against white people who by any means attract attention as earnest friends of the blacks.*! 37. Cong. Globe, 568 (emphasis added). 38. Cong. Globe, App. 192-93. 39. Cong. Globe, 517. 40. Id. 41. Cong. Globe, App. 78. 21a Appendix A—Opinion of the Court. In light of this history, we do not believe that Congress intended to immunize Klansmen when their vict'ms happened to be white. By analogy, members of a con- spiracy to deprive women of equal rights are liable under § 1985(3) to persons who are injured in further- ance of the object of the conspiracy, whether male or female. This determination draws further sustenance from the Supreme Court’s holding in Sullivan v. Little Hunt- ing Park.42 There the Court summarily determined that a white person expelled from membership in an all- white swimming club for advocating the membership of a black person could maintain an action under § 1982. Despite the fact that § 1982 gave no explicit cause of action to those injured in the course of conduct which it prohibited, the Court said: We turn to Sullivan’s expulsion for the advocacy of Freeman’s cause. If that sanction, backed by a state court judgment can be imposed, then Sullivan is punished for trying to vindicate the rights of minorities protected by § 1982. Such a sanction would give impetus to the perpetuation of racial restrictions on property. ... Under the terms of our decision in Barrows, there can be no question but that Sullivan has standing to maintain this action.43 42. 396 U.S. 229 (1970). 43. Id. at 327. See Tillman v. Wheaton-Haven Rec. Assn., 410 U.S. 431 (1973). The suggestion that to allow non-members of the class standing would set loose a deluge of § 1985(3) claims of the “general tort law’ variety is undercut by the experience of this Circuit. In Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971), we reversed the dismissal of a claim by a white employee who allegedly had been 22a Appendix A—-Opinion of the Court. Given the wording of the statute and the history can- vassed above, as well as the Court’s pronouncement in Little Hunting Park, a similar conclusion follows a fortiori in the case before us. Finally, a close reading of Griffin itself compels the conclusion that an action under § 1985(3) need not be predicated on a conspiracy involving invidious animus directed against the plaintiff personally. In Griffin the three plaintiffs had ridden to the place where they were attacked in a car owned by R. G. Grady, who was not involved in the suit. The complaint alleged that the assailants were under the mistaken impression that Grady was a civil rights worker. In determining that a cause of action had been made out under § 1985 (3), the Supreme Court stated: Finally, the petitioners—whether or not the non- party Grady was the main or only target of the conspiracy—allege personal injury resulting from those [conspiratorial] acts.44 There is no intimation that, had one of the plaintiffs in Griffin been a white civil rights worker, he would have been denied the cause of action which his black compatriots were granted. fired because of his advocacy of racial equality by his employer. In the seven years since Richardson no tide of spurious § 1985(3) litigation has yet engulfed our courts. 44. 403 U.S. at 103; cf. Herrman v. Moore, 77-6184 (2d Cir. May 10, 1978) (Black plaintiff who alleged he had been fired for advocating hiring of blacks brought a § 1985(3) suit. Summary judgement for the defendants was affirmed because insufficient evidence was presented that plaintiff had been discharged because of such advocacy ). 23a Appendix A—Opinion of the Court. Novotny asserts in his complaint that his employ- ment was terminated as a result of his support of equal opportunity claims of the female employees of GAF, “because of his known support for equal em- ployment opportunity for women within the GAF or- ganization”, and because he was “in a position to affect (sic) actions and procedures to implement equal em- ployment opportunities for women.’’45 Such allegations constitute a sufficient pleading of acts “in furtherance of the object of’ a conspiracy to deprive women in GAF of equal employment opportunity so as to entitle Novotny to maintain an action for damages to his person or property resulting from such acts.4® 45. Complaint {|| 24-27. 46. It has been suggested that Cameron v. Brock, 473 F.2d 608, 610 (6th Cir. 1973) runs counter to the position that we adopt. There the Court recognized a class composed of “supporters of political candidates” for Griffin purposes, and stated that “if a plaintiff can show that he was denied the protection of the law be- cause of the class of which he was a member” an action lay under § 1985(3). We understand the Sixth Circuit to have defined a sufficient rather than a necessary con- dition for a § 1985(3) action. Any other declaration would, of course, have been dictum. Likewise, the com- ment of the Seventh Circuit in Meiners v. Moriarity, 563 F.2d 343, 348 (7th Cir. 1977) that plaintiff did not allege “that he belongs to the kind of class . . . that could sup- port a claim under § 1985(3) “seems best interpreted as a definition of the type of class which can be the target of a § 1985(3) conspiracy rather than a statement about standing, particularly since that Circuit carefully re- served the issue of how close a connection between the plaintiff and the class of conspiracy victims was required under § 1985(3) in Murphy v. Mt. Carmel H.S., 543 F.2d 1189, 1192 (7th Cir. 1976). The “in furtherance of’ language of the statute seems to require some degree of relationship between 24a Appendix A—Opinion of the Court. (2) Hqual Privileges and Immunities and Equal Protection (a) The Statutory Scheme Once the existence of class-based invidious animus is established, the boundaries of protection offered by § 1985(3) are traced by the scope of the words “equal protection of the laws” and “equal privileges and im- munities under the laws.”’ These are the two primary interests which the statute purports to guard.47 the act done and the object of the conspiracy. We do not determine, however, how close such nexus must be to support a § 1985(3) claim. 47. it could be argued that because the phrases track the 14th Amendment’s guarantees, the construc- tion of the 14th Amendment's nenege should govern the guarantees of § 1985(3). See Be ae v. Mason’s Stores Inc., 508 F.2d 504, 507 (4th Cir. 1974). Such a conclusion may be unwarranted. First, with respect to the privileges and immunities clause, the language of § 1985(3) is broader than that contained in the 14th Amendment, Because it shields against state abridge- ment the “privileges and immunities of the citizens of the United States” the 14th Amendment has been held to secure only the privileges and immunities of national citizenship as opposed to state citizenship. This inter- pretation in turn has been construed to exclude “‘basic’”’ rights said to attach to state citizenship from protec- tion of the 14th Amendment See e.g. Madden v. Ken- tucky, 309 U.S. 83, 90-91 (1940) ; Hague v. CIO, 307 U.S. 496 (1939); Twining v. New ates 211 U.S. 78 (1908) ; Hodges v. United States, 203 U.S. 1, 15-16 (1906) ; United States v. Cruikshank, 92 U.S. 542 (1875); Slaughterhouse Cases, 83 U.S. [16 Wall.] 36, 72-82 (1872). See generally United States v. Williams, 341 U.S. 70 (1951) (opinion of Frankfurter, J.). In contrast, the language of § 1985(3) reads, “privileges and immu- nities under law.” 25a Appendix A—Opinion of the Court. As a result, since the resuscitation of § 1985(3) in Griffin, there has been considerable discussion by jurists and scholars as to whether the statute is “sub- stantive” or “remedial,” and if “remedial,” for which rights it provides remedies.*8 While we have no occasion Second, while the 14th Amendment is on its face directed against state denials of equal re and deprivations of liberty and property, the Supreme Court has established that, in accordance with its language, § 1985(3) applies to private as well as public action. Griffin, 403 U's. at 96-101. As a result, canons of con- struction developed to delimit the reach of the 14th Amendment prohibitions may not be appropriate guides to ascertaining the range of § 1985(3). Moreover, § 1985(3), enacted eight = after pas- sage of the 14th Amendment, has a legislative history of its own which may well cast different light on its mean- ing than that surrounding the adoption of the 14th Amendment, Cf Griffin, 403 U.S. at 104-05 (holding that certain applications of § 1985(3) are authorized by the 13th Amendment). 48. H.g. compare Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) (en banc) (protecting freedom of reli- gion); Means v. Wilson, 522 F.2d 838 (8th Cir, 1975) cert. denied 424 U.S. 958 (1976) (protecting right to vote) ; Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971) (protecting free expression) with Cohen v. Illinois Inst. of Technology, 524 F.2d 818 (7th Cir.) cert. denied 425 U.S. 943 (1976) (sex discrimination not actionable un- der 14th Amendment and § 1985(3)); Bellamy v. Mason’s Stores, Inc., 508 F.2d 504 (4th Cir. 1974) (free association not protected); McLellan v. ayy, Power & Light Co., 545 F.2d 919 (1977) (en banc) (only independently illegal acts deprive of equal protection not reaching scope of privileges and immunities). See generally Lopez v. Arrowhead Ranches, 523 F.2d 924 (9th Cir. 1975). And compare e.g. Note, Private Con- spiracies, supra note 19 (arguing that restriction to remedying independently illegal actions is “formalistic and over-restrictive” but suggesting that statute should 26a ~ Appendix A—-Opinion of the Court. to undertake to review the entire debate, certain ob- servations frame our discussion here. It seems that § 1985(3) is not to be read as a general charter to federal courts to set codes of conduct wherever “equality” of any class is allegedly infringed. The reluctance to trigger the development of such a “general federal tort law” formed the backdrop of the Supreme Court’s discussion in Griffin,t® and properly so in light of the statutory language contained in § 1985(3) as well as its legislative history. The passage, “deprive of ... equal protection of the laws or equal privileges and immunities under the laws,”59 connotes the existence of laws outside of § 1985(3) which define the “protection” and “privileges and immunities” that are guaranteed against invasion."! exempt “areas of private choice that should remain autonomous”) ; Note, The Supreme Court 1970 Term, 85 Harv. L. Rev. 3, 99-101 (areas covered by § 1985(3) are “uncertain,” suggesting limitation of protection to guar- antees of Bill of Rights) with Note, The Scope of Sec- tion 1985(3), supra note 19 at 242-251 (arguing that § 1985(3) should be limited to providing a remedy for independent federal rights); Note, Federal Power to Regulate, supra note 10 at 497-98 (suggesting statute should be read as “remedial’’), see also n.62 roe Sy 49. 403 U.S. at 102. Cf. Paul v. Davis, 424 U.S. 693, 701 (1976); Senator Trumbull, Cong. Globe 580 (“quite well satisfied” that intent of § 2 was not “to enter the States to pass a general criminal code for the State, or a general law for the redress of civil injuries’’). 50. 42 U.S.C. § 1985(3) (Emphasis added). 51. Cf. McLellan v. Mississippi Power & Light Co., 545 F.2d 919, 924-28 (5th Cir. 1977) (en banc) (reach- ing a conclusion that the object of conspiracy must be independently illegal, on the basis of dicta in United States v. Harris, 106 U.S. 629 (1882) ). 27a Appendix A—Opinion of the Court. This connotation is confirmed by our reading of the debates surrounding the adoption of § 1985(3). Most of the proponents of the Ku Klux Klan Act explicity viewed it as protecting rights conferred by sources other than the Act itself.52 Indeed, Senator Edmunds, the floor manager of the bill in the Senate, explicitly stated: All civil suits which this Act authorizes, as every lawyer understands, are not based on it, they are based on the rights of the citizen. The Act only gives a remedy.53 Similarily, in describing the conspiracies actionable under § 1985(3), the Supreme Court in Griffin said: The conspiracy, in other words, must aim at a de- privation of the equal enjoyment of rights secured by law to all.54 52. See e.g. Senator Edmunds, Cong. Globe, 567 (“Constitutional rights’) 568, (‘Constitution and Laws of the United States”) 568, 581 (“equal protection of the laws of the United States’) ; Representative Cook, id, at 485 (“where Constitution of the United States secures a right to a citizen’); Representative Shella- barger, id. at 382 (“laws of the United States and con- stitution thereof”) App. 113 (“constitutional or statu- tory law’) ; Representative Hawley, id. at 383 (semble) ; ef. Senator Thurman, id. App. 218 (arguing that “laws” must be laws of the United States, since otherwise Con- gress has no power to punish violations”). But cf. Rep- resentative Shellabarger, Cong. Globe at App. 69 (sug- gesting that § 2 protects “those privileges and immuni- ties which are in their nature fundamental and which inhere and belong of right to citizens of all free govern- ments’); Representative Sumner, id. at 651 (“rights national in character’). 53. Cong Globe at 568. 54. 403 U.S. at 102. See id. 103 (“animus to de- prive the petitioners of equal enjoyment of legal rights” Appendix A—Opinion of the Court. Whatever else “equal privileges and immunities” or “equal protection” may mean, in the context here, we conclude that a deprivation of equal privileges and im- munities under § 1985(3) includes the deprivation of a right secured by a federal statute guaranteeing equal employment opportunity. This is not to say, however, that the object of the conspiracy must necessarily be independently illegal, or that the law conferring a right must by its own force secure it against private action.55 For the statute pro- scribes conspiracies to deprive persons or classes of persons of legal rights ‘directly or indirectly.” And, as Judge Learned Hand said of another section of the Ku Klux Klan Act securing federal privileges, ‘it would emasculate the Act either to deny protection against reprisal to those whom threats did not deter, or to leave recourse those who were later made victims of reprisals of which they had not been warned.’’56 is requisite of a § 1985(3) claim) ; id. at 105 (“Congress may protect blacks against conspiracies depriving them of the basic rights that the law secures to all free men’’). See The Supreme Court, 1970 Term, 85 Harv. L. Rev. 3, 99 (1971). 55. Our analysis thus diverges from that adopted by the Fifth Circuit in McLellan v. Mississippi Power = eas Co., 545 F.2d 919, 924-28 (5th Cir. 1977) (en anc). 56. Bomar v. Keyes, 162 F.2d 136, 139 (2d Cir.) cert. denied 332 U.S. 825 (1947) (L. Hand, J. for Swan and Clark, JJ.) (holding that termination of probation- ary teacher in retaliation for voluntary decision to serve on a federal jury would “deprive” her of a “right or privilege secured by a law of the United States” in vio- lation of § 1983). See United States v. Waddell, 112 U.S. 76 (1884) (interference with privilege to establish homestead on federal land actionable under § 241, de- 29a Appendix A—Opinion of the Court. Thus § 1985(3) may not be construed as a warrant to impose wide-ranging new duties upon private in- dividuals in the interests of abstract equality. Yet it must be remembered that the Act was broad-gauged legislation designed to provide additional remedies for actions threatening the enjoyment of important rights. As a draftsman of the Act expressed the intent: This Act is remedial and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such stat- utes are liberally construed ... [and] the largest latitude consistent with the words employed is uni- formly given in construing such statutes... .57 (b) Equal Protection Privileges and Immuni- ties in this case Here, as noted above, the plaintiff alleged a con- certed course of conduct on the part of individual de- fendants of “intentionally and deliberately ... denying to female employees equal employment opportunity,” in various specified respects.58 Novotny further pleaded spite the fact that statute granting privilege did not explicitly protect the homesteader against private ac- tion). The position that rights created between the citizen and the Federal Government entail a concomitant obli- gation of private parties not to interfere with receipt of benefits under or the exercise of such rights was ably expounded by Professor Cox in Foreword: Constitu- tional Adjudication and the Promotion of Human Rights, 80 Harv. L. Rev. 91, 110-115 (1966). 57. Representative Shellabarger, Cong. Globe App. 68 (introducing Ku Klux Klan Act.) 58. Complaint {|| 17-21. See n.1 supra. 30a Appendix A—Opinion of the Court. that in retribution for his support of equal employment opportunities for women within the GAF organization, the individual defendants, acting in concert, caused his employment with GAF to be terminated. Taking his averments as true—as on a rule 12(b) (6) motion we must59—Novotny has made out a case that he has been injured by acts done in furtherance of a con- spiracy proscribed by § 1985(3). The conspiracy alleged had as its goal the denial of job equality for women, in direct violation of federal law guaranteeing this basic and important right.69 And at least a coadunation to deprive female employees of the basic right of equal opportunity in contravention of federal law would fall squarely within the statute’s prohibition of conspiracies to abridge equal privileges and immunities.®1 59. See e.g. Jenkins v. McKeithen, 395 U.S. 411, 416 (1969) ; Conley v. Gibson, 355 U.S. 41, 45-48 (1957). 60. 42 U.S.C. § 2000e-2(a) (1) makes it an unlaw- ful employment practice for an employer to “discrimi- nate against any individual with respect to his compen- sation, terms, conditions, or privileges of employment because of such individual’s ... sex.” Similarly, 43 P.S. § 955(a) under Pennsylvania law makes it unlawful for any employer “because of . . . sex . . . to discriminate against [and] individual with re- spect to compensation, hire, tenure, terms, conditions or privileges of employment.” Moreover, the individual con- duct which Novotny alleges might also violate 43 P.S. § 955(e) which prohibits “any person, whether or not an employer ... or employee” to aid, abet, incite, com- pel or coerce” a violation of § 955(a). 61. As noted above, n.47 swpra, unlike the 14th Amendment, § 1985(3) does not appear to limit its pro- tection to the privileges and immunities of United States citizens. But the legislative history is not pellucid. Cf. 7 31a Appendix A—Opinion of the Court. While the Congress in 1871 could not have specifi- cally contemplated a federal statute that was not en- acted until almost a century later, as a matter of ordi- nary language the words of § 1985(3) clearly embrace a statutorily provided right of equal employment op- portunity within the rubric “equal privileges and im- munities under the laws.”’ As the Court said in United e.g. Representative Cook, Cong. Globe 486 (suggesting “force, fraud or intimidation” would violate statute) ; Senator Edmunds, id. 580 (equal protection of “state laws’); with e.g. Senator Thurman, id. App. 218 (only national laws can be enforced by Congress); Senator Sumner, id. 651 (rights protected should be national ry so that protection will not be “acci-ent of local w’’). ‘ In his complaint, Novotny claimed that the retalia- tion for his support of women abridged his First Amend- ment rights, in violation of § 1985(3). Cf. Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971). Sinee we find the requisite allegations of a conspir- acy to deny equal privileges and immunities in the pleading regarding sex discrimination, we need not re- solve the question whether a class-based conspiracy to injure an individual for the exercise of First Amend- ment rights would state a cause of action under § 1985 (3). Compare Tyler v. “Ron”, No. 77-1885 (8th Cir. 18 April 1978) (interference with constitutional right would state a §1985(3) cause of action) ; Action v. Gan- non, 450 F.2d 1227, 1235 (8th Cir. 1971) (en banc) (pri- vate interference with freedom of religion states a cause of action); Westberry v. Gilman Paper Co., 507 F.2d 206 (5th Cir. 1975) withdrawn as moot 507 F.2d 216 (en banc) (firing employee for political activities made out § 1985(3) claim); Means v. Wilson, 522 F.2d 833 (8th Cir. 1975) (conspiracy to deny right to vote in tribal elections states a § 1985(3) claim) cert. denied 424 U.S. 958 (1976) with Murphy v. Mt. Carmel H.S., 543 F.2d 118$ (7th Cir. 1976) (First Amendment right to free speech not protected) ; Bellamy v. Mason’s Stores, Inc., 508 F.2d 504 (4th Cir. 1974) (right of association 32a Appendix A—Opinion of the Court. States v. Price,°2 regarding 18 U.S.C. § 241, the “closest remaining criminal analogue of § 1985(3)”:6% The language ...is plain and unlimited. As we have discussed, its language embraces all of the rights and privileges secured to citizens by all of the Con- stitution and all of the laws of the United States. There is no indication in the language that the sweep of che section is confined to rights that are conferred by or “flow from” the Federal Govern- not protected); McLellan v. Mississippi Power & Light Co., 545 F.2d 919, 925-26 n.22 (5th Cir. 1977) (en banc) (right to file bankruptcy petition not protected). See also Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973) (conspiracy by sheriff to harass political opponents states § 1985(3) claim). We note, however, that insofar as the reluctance to recognize a cause of action for First Amendment rights is based on a supposed want of Congressional power, such reasoning is less forceful here. It has been held that the right to speak on issues regarding the national government is a right and privilege of national citizen- ship protectable under the 14th Amendment and Con- gress’ inherent powers. Hague v. CIO, 307 U.S. 496 (1939) (opinion of Roberts, J.) ; see United States v. Cruikshank, 92 U.S. 542, 552 (1875). See also n.109 infra (right to persuade others to comply with federal law may be privilege of national citizenship) . 62. 383 U.S. 787, 800 (1966). 63. This characterization was contained in Griffin, 403 U.S. at 98. Enacted a year before the Ku Klux Klan Act, § 241 makes it a federal crime to: conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the United States, or because of his hav- ing so exercised the same.... 33a Appendix A—Opinion of the Court. ment, as distinguished from those secured or con- firmed or guaranteed by the Constitution. Nor does the legislative history of the Ku Klux Klan Act weaken the implication of the statutory lan- guage that rights conferred by at least some federal statutes fall within the definition of “equal privileges and immunities.”64 Congressman Shellabarger, the Act's prime legislative engineer, described § 2, from which § 1985(3) is derived, as “providing for the punishment of any combination or conspiracy” impinging on basic rights protected by law.65 And Senator Edmunds stated that § 2 mandated punishment for acts done in pur- suance of “a conspiracy to deprive the citizens of the United States, in the various ways named, of the rights which the Constitution and laws of the United States made pursuant to it give them.’’66 64. Inasmuch as we are concerned here only with a federal statute securing a right to equal employment opportunity, which we hold to be within the ambit of § 1985(3)’s “equal privileges and immunities,” we have no occasion to determine whether rights secured by all federal statutes or by state law come within § 1985(3)’s “privileges and immunities.”’ _. 65. Cong. Globe at 382 (conspiracy to “depriv citizen of the United States of poten gerber and rat ties as he has by virtue of the laws of the United States and the Constitution thereof”). (emphasis added). See the remarks of Congressman Shellabarger at id. 517 (the goal of the Ku Klux Klan “is to trample into the dust the newly acquired political rights of the freeman and the Constitution and laws which confer them) ;” id. app. 113 (the gist of the offense under section 2 is “in the conspiracy to defeat United States Law made in pro- tection of the fundamental rights of national citizenship, whether that law be Constitutional or statutory law”). 66. Cong. Globe 568. See e.g. id. at 383 (Rep. Haw- ley) (law should reach those who “stand in the way of 34a Appendix A—Opinion of the Court. The conclusion that rights conferred by at least some federal statutes fall within the ambit of “equal privileges and immunities under the laws,” which § 1985(3) protects, is also amply supported by relevant precedent. A number of courts of appeals have de- termined that a deprivation of certain statutory rights gives rise to a cause of action under § 1985(3).°7 More- over, in cases regarding statutes cognate to § 1985(3), the Supreme Court has held that “privileges and im- munities” include federal statutory rights.®§ the exercise by this man of the rights and privileges to which he is clearly entitled under the constitution and laws of the United States’’) ; id. app. 188 (Rep. Willard) (bill covers “rights, privileges and immunities of any rson to which he is entitled under the Constitution and ws of the United States’). Id. 579 (Sen. Trumbull) (bill protects “persons in the rights which were guaran- tied (sic) them by the Constitution and laws of the United States... .’’) Quoted in Monroe v. Pape, 365 U.S. 167, 181 (1961). 67. Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973) ; Lopez v. Arrowhead Ranches, 523 F.2d 924 (9th Cir. 1975) (by implication) ; Doski v. M. Goldseker Co., 539 F.2d 1326 (4th Cir. 1976) (by implication) Tay- lor v. Nichols, 558 F.2d 561, 571 (10th Cir. 1977) ; Local No. 1 v. Intl. Brotherhood of Teamsters, etc., 419 F. Supp. 263, 275-77 (E.D. Pa. 1976); Beamon v. Saunder ¢& Co. 423 F. — 1167, 1177 (E.D. Pa. 1976) ; Milner v. Ntl. School of Health Tech., 409 F. Supp. 1389, 1395 (E.D. Pa. 1976). Cf. Cohen v. Ill. Inst. of ne 524 F.2d 818, 828 (7th Cir. 1975) cert. denied 425 U.S. 943 (1976) (“a federally protected right”). 68. While, for the reasons noted above, n.47 supra, we are reluctant to reason closely from analogies to the 14th Amendment privileges and immunities clause, it is to be observed that in the Slaughterhouse Cases, 83 U.S.’ (16 Wall) 36, 79 (1883), the Court said that national privileges or immunities were those “which owe their existence to the Federal government, its national char- acter, its Constitution, or its laws.” (emphasis added). 35a Appendix A—Opinion of the Court. In United States v. Johnson,®® the Supreme Court reviewed the application of § 241,79 which protects the “free exercise or enjoyment of any right or privilege secured by the Constitution and laws of the United States,” to a “conspiracy by outside hoodlums to as- sault Negroes for exercising their right to equality in public accommodations under § 201 of the Civil Rights Act.”71 The Court had little trouble in concluding that “the right to service in a restaurant is such a ‘right’ {under § 241] at least by virtue of the 1964 Act’’.72 Similarly, almost a century earlier, in United States v. Waddell,?3 the Supreme Court was faced with a com- bination to drive a homesteader off federal land upon which he was attempting to establish a claim pursuant to statutory procedures. Such acts “to prevent or throw obstruction in the way of exercising such statutory rights” were held to constitute a conspiracy to impair federal rights which could be attacked under § 241. Similar light is cast by the interpretation of § 1983, formerly § 1 of the Ku Klux Klan Act of 1871.74 In City of Greenwood v. Peacock, the Supreme Court stated that under § 1983 “officers may be made to respond in damages ... for violations of rights conferred by federal equal civil rights laws (sic),’ and a number of Circuits 69. 390 U.S. 563 (1968). 70. See note 63 supra. 71. 390 US. at 564. 72. Id. at 565-66. 73. 112 U.S. 76 41884). _ %4. The legislative history reveals that the Con- gress was also aay ee of the relationship between the scope of § 1985(3) and § 241. Representative Willard, A Globe 189 app.; Representative Shellabarger, id. app. 36a Appendix A—Opinion of the Court. have acknowledged that suits for such statutory viola- tions are proper.75 Having held that at least some federal statutory rights can form the predicate for a suit under § 1985(3), Novotny, in alleging the existence of a conspiracy to violate the equal employment rights of female employees in contravention of Title VII, has adequately pleaded the existence of conspiracy to deprive a class of persons of equal privileges or immunities under the laws. (c) Conflict with Title VII The defendants suggest that even if § 1985(3) provides a remedy for conspiracies to impair statutorily- conferred rights as a general matter, a § 1985(3) action to redress conspiracies to violate Title VII rights would be inconsistent with the administrative mechanism es- 75. 384 U.S. 808, 829. See, e.g. Chase v. McMasters, No. 77-1317 (8th Cir. April 5, 1978) ; Sanders v. Conine, 506 F.2d 530 (10th Cir. 1974); Blue v. Craig, 505 F.2d 830 (4th Cir. 1974); Gomez v. Florida State Employ- ment Service, 417 F.2d 569 (5th Cir. 1969); Bomar v. Keyes, 162 F.2d 136 (2d Cir.), cert. denied, 332 U.S. 825 (1947) (L. Hand, J.); LaRaza Unida v. Volpe, 440 F. Supp. 904 (N.D. Cal. 1977). Cf. e.g. Hisen v. Eastman, 421 F.2d 560 (2d Cir. 1969) overruled Lynch v. House- hold Finance Corp., 405 U.S. 538, 542 (1975) (§ 1983 does not protect property rights); Andrews v. Maher, 525 F.2d 113 (2d Cir. 1975) (no jurisdiction under 28 U.S.C. § 1343(3) to hear § 1983 challenge to deprivation based on welfare statute). Randall v. Goldmark, 495 F.2d 356 (1st Cir.), cert. denied 419 U.S. 879 (1974) (semble). The conclusion that § 1983 and § 1985(3) may both provide causes of action for deprivation of statutory rights is not undercut by the reasoning of Gonzalez v. Young, 560 F.2d 160 (3d Cir. 1977), cert. granted 46 U.S.L.W, 3526, Feb. 21, 1978. — 37a Appendix A—Opinion of the Court. tablished by the latter Act. In support of this proposi- tion, they cite the Fourth Circuit’s holding in Doski v. Goldseker.76 In Doski, a female employee brought suit alleging sex discrimination violative of both Title VII and § 1985 (3). The court held the Title VII remedy to be the ex- clusive means of vindicating statutory rights, since the availability of § 1985(3) would allow a plaintiff to by- pass the administrative procedures provided by Title VII. Doski read those parts of the legislative history of Title VII approving overlap between Title VII and other Civil Rights Act remedies to refer only to vindica- tion of “federal rights [which existed] prior to the enactment of Title VII.”77 At least one court of appeals has apparently reached a conclusion contrary to that of the Fourth Circuit. In Marlowe v. Fischer Body,78 the Sixth Circuit reversed the dismissal of a complaint which alleged employment discrimination based on religion and na- tional origin. Although the complaint contained counts based on Title VII and the NLRA, in addition to § 1985 (3), the Sixth Circuit reversed the dismissal on all counts,79 76. 539 F.2d 1326 (4th Cir. 1976). Cf. Schatte v. International Alliance, 182 F.2d 158 (9th Cir. 1950) (no § 1983 suit for rights protected by NLRA; NLRA reme- dies held exclusive). 77. 539 F.2d at 1334. 78. 489 F.2d 1057 (6th Cir. 1973). 79. See Milner v. Natl. School of Health Tech., 409 F. Supp. 1389 (E.D. Pa. 1976) (recognizing claim for sex discrimination violating Title VII under § 1985(3) ). Cf. Weise v. Syracuse University, 522 F.2d 397, 408-409 n.16 (2d Cir. 1975) (reserving issue of possible conflict between Title VII and § 1985(3) ). Appendix A—Opinion of the Court. We find the result reached in Marlowe to be better grounded in history and precedent than that in Doski. On its face, § 1985(3) makes no distinction among federal privileges and immunities depending on the date of the enactment of laws securing them. As noted above, the language seems to protect all such privileges and immunities. Indeed, in describing the bill, Senator Edmunds stated that it reached “conspiracies to de- prive people of the equal protection of the laws, what- ever those laws may be.”’8° Thus, if rights protected by Title VII are to be excluded from the scope of § 1985(3), such result must flow from the fact that Title VII worked a partial repeal of § 1985(3), although § 1985(3) was not mentioned by the later legislation. Such repeals by implication are, of course, not favored. In Runyon v. McCrary,81 the Supreme Court recently reitcrated, in reference to § 1981, the rule that implied repeals occur only if the two legis- lative acts in question are in irreconcilable conflict.* Given the legislative history of Title VII and its con- struction by the Supreme Court, we discern no such conflict here. As the Supreme Court observed in Alexander v. Gardner-Denver Co.,83 the Senate defeated an amend- ment which would have made Title VII the exclusive federal remedy for most unlawful employment practices, 80. Cong. Globe 568. 81. 427 U.S. 160, 173 n.10 (1976). 82. Cf. Sullivan v. Little Hunting Park, 396 U.S. 229, 237 (1969) (§ 1982 is not —— by 1964 Civil Rights Act, because the later Act is “not at war” with the principles embodied in § 1982). 83. 415 U.S. 36, 48 and n.9 (1974). ' 39a Appendix A—Opinion of the Court. and a similar amendment was rejected in connection with the Equal Employment Opportunity Act of 1972. Indeed, the Supreme Court noted in Runyon84 that Senator Williams, floor manager of the 1972 Act, argued in opposition to the amendment that “it is not our purpose to repeal existing civil rights laws,” and spe- cifically stated that: The law against employment discrimination did not begin with Title VII and the EEOC, nor is it in- tended to end with it... the courts have specifically held that Title VII and the Civil Rights Acts of 1866 and 1871 are not mutually exclusive, and must be read together to provide alternative means to redress individual grievances.85 Such statements are not isolated remarks. After reviewing the legislative history of Title VII, the Su- preme Court in Johnson v. REA concluded: Despite Title VII’s range and its design as a com- prehensive solution for the problem of invidious discrimination in employment, the aggrieved in- dividual is clearly not deprived of other remedies he possesses and is not limited to Title VII in his search for relief.86 84. 427 US. at 174 n.11. 85. 118 Cong. Rec. 3371 (1972). 86. 421 U.S. 454, 459 (1975). See Alexander v. Gardner-Denver Co., 415 U.S. 36, 48 (1974). Johnson also explicitly considered and rejected the contention that litigants under § 1981 should be required to follow Title VII's administrative procedures before being per- mitted to litigate. 421 U.S. at 461. The argument that § 1985(3) actions founded on Title VII rights need not defer to the procedures specifi- cally provided for the vindication of Title VII rights is #08 Appendi A—Opinion of the Court. In view of this holding, and of the generally favor- able reception which the Supreme Court has extended to Reconstruction Act litigation dealing with subjects also covered by later civil rights enactments,87 we con- clude that Novotny’s claim under § 1985(3) is not precluded by Title VII. C. The Constitutionality of § 1985(3) (1) The Scope of the Inquiry The defendants assert that if § 1985(3) purports to reach confederations such as the one alleged by Novotny, the statute is beyond the powers conferred upon Congress, and therefore unconstitutional. Before examining this contention, the question of the statute's constitutionality must be set in perspective. f somewhat weaker than that for the independence o § 1981. Unlike § 1981, § 1985(3) is not specifically men- tioned in the debates on Title VII, and § 1985(3) is more intimately linked to Title VII. On the other hand, in this case, the EEOC, which is entitled to some deference in such matters, see e.g. Zuber v. Allen, 396 U.S. 168, 192- 94 (1969); Udall v. Tallman, 380 U.S. 1, 16 (1965) has argued for the availability of a § 1985(3) action to vindi- cate Title VII rights. In any event, since the plaintiff here properly ex- hausted his remedies under Title VII, we need not re- solve the issue. . See Sullivan v. Little Hunting Park, 396 US. 229, 387 (1969) (§ 1982 and Fair Housing Act) ; United States v. Johnson, 390 U.S. 563 (1968) (§ 241 and 1964 Public Accommodations Act) ; cf. Adickes v. 8. H. Kress & Co., 398 U.S. 144, 150 1.5 (1970) (No § 1983 recovery for violation of Public Accommodations Act, in view of manifest Congressional intent that damage actions not be permitted. A 14th Amendment action under § 1983, however, is not inconsistent with Public Accommoda- tions Act). 4la Appendix A—Opinion of the Court. In the first case in which the Supreme Court faced a challenge to the constitutionality of the Ku Klux Klan Act of 1871, the Court set forth its analysis in these terms: Proper respect for a coordinate branch of the gov- ernment requires the courts of the United States to give effect to the presumption that Congress will pass no Act not within its constitutional power. This presumption should prevail unless the lack of con- stitutional authority to pass an Act is clearly dem- onstrated.88 Ninety years later, in construing § 1985(3), the Court in Griffin was again met with the allegation that Con- gress had exceeded its powers in the 1871 Act. It de- termined the question in the negative, measuring the Act against the following standard: Our inquiry .. . need go only to identifying a source of congressional power to reach the private con- spiracy alleged by the complaint in this case.8? Griffin gave no indication that Congress must spe- cifically invoke a particular Constitutional authorization to allow the Court to sustain an enactment. Instead, since the presumption is in favor of constitutionality, 88. Uvited States v. Harris, 106 U.S. 629, 635-36 (1883). The Court went on to quote with approval the comment of Mr. Justice Story: Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be whether it is properly an incident to an express power and necessary to its execution. Jd. at 636. 89. Griffin, 403 U.S. at 104. Appendia A—Opinion of the Court. the government need only point to an applicable fount of congressional authority.9° Discussion must, therefore, be directed toward as- certaining whether a source of Congressional power exists which will justify giving relief to Novotny. (2) The Power of Congress is little question that the Congress which slo ‘che 1871 Lak eae itself to be acting under the Fourteenth Amendment. The legislation itself formally entitled “An Act to Enforce the oe oa the Fourteenth Amendment to the United States oe stitution and For Other Purposes.” In defending proposal against charges of unconstitutionality, ya ponents of the Act found warrant in the text of the Fourteenth Amendment. reme Court recently noted in Monell v. N Pi hicoy of Social Services,9! that age gg Shellabarger opened his remarks introducing me " by asserting that the Fourteenth Amendment 8 he n guarantees of “equal protection” and the “privileges and immunities of citizenship” should be read to ite tect equality in the enjoyment of life, liberty, “i property. He then invoked what he regarded —n settled principle of law that “Congress has always Nera 9 e.g. District of Columbia v. Carter, 40 U.S m8, veyes | (1973) (extension of § veer . — against deprivation under color of territorial law ore sumed to be an exercise of Article IV power y tony er territories) ; Examining Board v. Flores de Otero, U.S. 572, 582-83 (1976) (semble). 91. 46 U.S.L.W. 4753-54 (1978). —EE 43a Appendix A—Opinion of the Court. sumed to enforce, as against the states and also persons, every one of the provisions of the Constitution.’”’92 It was not without a certain sense of poetic justice that Representative Shellabarger adduced support for this proposition. For the cases sustaining the fugitive slave laws enacted by Congress prior to the Civil War, beginning with Prigg v. Pennsylvania, rested their hold- ings on the proposition that the Fugitive Slave clause of the Constitution,93 though on its face addressed to “laws and regulations” of states, empowered the federal government to adopt legislation binding on individ- uals.94 Shellabarger declared that it could not “now be endured” that those decisions which were invoked and sustained in favor of bondage shall be stricken down when first called upon and invoked in behalf of human rights and American citizenship.95 92. Id. 93. Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842); see e.g. Ableman v. Booth, 62 U.S. (21 How.) 506 (1859). See generally R. Cover, Justice Accused; . Antislavery and the Judicial Process 159-191 (1975). 94. Art. IV § 2cl.3: No Person held to Service or Labour in one State, under the laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. 95. Cong. Globe App. 70. The refrain was taken up by others in both the House and Senate: e.g. Representa- tive Sumner, Cong. Globe 651 (“As in other days Slav- ery gave its Character to the Constitution, filling it with its own denial of Equal Rights and Compelling the Na- tional government to be its instrument, so now do I in- Appendix A—Opinion of the Court. Although it appears that at the time he propounded it, Shellabarger’s argument was supported by the weight of legal precedent,?® subsequent litigation demonstrated the Supreme Court’s reluctance to apply the principle of Prigg to legislation enacted in reliance on the Four- teenth Amendment. Without dealing squarely with the sist that Liberty must give its Character to the Consti- tution.” ) Representative Platt (App. 183-184) (“T presume this power will not be questioned by gentlemen on the other side representing the Democratic Party .... They found enough teed in the Constitution to compel every man in every state in the Union to assist in enforcing the United States laws . . . compelling them by United States law and in defiance of State Laws to assist in re- turning fugitives to slavery. .. .”). Senator Lowe, 375 (“If such was the law announced by the tribunal of the last resort in reference to the rendition of fugitive slaves, shall a less liberal construction be allowed in reference to a similar constitutional Provision in favor of civil rights and es security?”). See generally, Avins, supra note 33. 96. This conclusion was arrived at by commenta- tors as divergent as Laurent Frantz, Congressional Pow- er to Enforce the Fourteenth Amendment Against Pri- vate Acts, 73 Yale L.J. 1353, 1357 (1964) and Prof. Raoul Berger, Government By Judiciary, The Transformation of The Fourteenth Amendment 225-27 (1977). But cf. Bickel, The Original Understanding and the Segregation Decision, 69 Harv. 1, 60 and n.115 (suggesting that, de- tg statements to the contrary by the draftsman of the 14th Amendment, the legislative history indicates that Congress was not to have the latitude sed in the Necessary and bag clause); Note, Theories of Federalism & Civil Rights, 75 Yale L.J. 1007, 1045-46 and n.200 (1966) (suggestion that § 5 is narrower than the Necessary and Proper clause, and therefore Prigg may be distinguished). . CJ - 4 Appendix A—Opinion of the Court. i fugitive slave law cases,97 the Supreme Court erected a barrier preventing the application of legislation im- plementing the Fourteenth Amendment to activities not infused with “state action.’’98 The last two decades have brought a substantial erosion of that barrier.99 And in United States v. Guest a majority of the Court expressed the opinion that the specific language of § 5 [of the 14th Amend- ment] empowers the Congress to enact laws pun- ishing all conspiracies—with or without state action 97. It is unclear whether the Court i pe fugitive slave cases in Harris or ch aeoe-ag aah ho aie case was argued to the Court in the Civil Rights ases, 109 U.S. 3, 7 (1883); and Justice Harlan made ae eg use of it in his dissent, id. 28-35, 50-54. The ee a owever, declined to mention Prigg and its 98. E.g. United States v. Cruiksh (1876) ; United States v. Harris, 106 US 629 (1883); Civil Rights Cases, 109 U.S. 3 (1883); see generally, yg gy of Pennsylvania v. Local Union No. 542, 3 7 F. Supp. 268, 201-94 ( E.D. Pa. 1972) (Higginbot- J. es ci erein; Note, to Regulate, supra note 10 at 452-460. sin unenebaad 99. See e.g. District of Columbia v. Ca 418, 424 n.8 (1973) ; United States v Guest, 0100 infra. United States v. Price, 383 U.S. 787, 797-807 (1966) ; Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 7 279-286 ( 1964) Sy ore of Douglas, J. concurring) - 291-93 (opinion of Goldberg, J. concurring) ; Action “ Gannon, 450 F.2d 1227, 1233-37 (8th Cir. 1971) (en anc) (and materials cited therein) ; Commonwealth of hr get v. Local Union No. 542, 347 F. Supp. 268 -97 (E.D. Pa. 1972) (Higginbotham, J.) (and ma- teri : aon or aan. =" therein) ; see generally Coz, supra note 57 Appendix A—Opinion of the Court. —that interfere with Fourteenth Amendment rights.100 In Griffin, however, the Supreme Court declined to rely on the Fourteenth Amendment in upholding the power of Congress to enact § 1985(3), and no Supreme Court case has attempted to chart the limits of § 5 since that time. Inasmuch as we need not rest on the Four- teenth Amendment to justify the application of § 1985 (3) to this case, it is not necessary at this time to resolve the scope of its Fourteenth Amendment foundation.!°! 100. 383 U.S. 745, 762 (1966) (opinion of Clark, J., joined by Black and Fortas, JJ.) ; id. at 782 (opinion of Brennan, J. joined by Warren, Ch. J. and Douglas, J.). See e.g. Cox, supra note 57 at 108-20; Note, Theories of Federalism, supra note 96, at 1043-49 (1966). ‘ 101. Defendant asserts that the opinions of Judge (now Justice) Stevens; for the Seventh Circuit in Dom- browski v. —s 459 F.2d 190 (7th Cir. 1972) and Cohen v. Ill. Ins. Tech., 524 F.2d 818 (7th Cir. 1975) cert. denied 425 U.S. 943 (1926), are adverse to the as- sertion of the 14th Amendment as a basis for § 1985(3) as it applies to private action. As we read those cases, however, they adopt the position that § 1985(3) “requires consideration of the state action issue in cases bottomed on an alleged viola- tion of the Fourteenth Amendment,” 524 F.2d at 829. That is, when the plaintiff asserts that the “right or privilege” or “protection of the law” (see part II(B) (2) (a) supra) impinged upon is the right to equal protec- tion guaranteed by the bare terms of § 1 of the 14th Amendment, state involvement must be present because $ 1 ex proprio vigore is addressed to the states. Such a statutory construction, even if accepted, however, does not resolve the question or whether the enforcement clause of the 14th Amendment authorizes the applica- tion of § 1985(3) to invidious discrimination on the part of private individuals which deprives persons of rights or privileges secured by state or federal laws or constitu- tional epee other than the 14th Amendment. Cf. cases cited n.62 supra. 47a Appendix A—Opinion of the Court. The plaintiff alleges a conspiracy to deprive women employed by GAF of their equal employment rights in violation of Title VII. We do not understand the defend- ants to challenge the power of Congress to prohibit em- ployment discrimination by employers like GAF. Nor could such a challenge be plausibly made, for prohibition of such discrimination falls clearly within the range of Congressional authority under the commerce clause.192 The same authority which warrants the provision of such rights in the first place equally empowers Congress to provide sanctions against conspiracies to interfere with the equal enjoyment of rights under Title VII.193 102. See e.g. Daniel v. Paul, 395 U.S. 298 (1969) ; (Title II of 1964 Civil Rights Act is sustainable under Commerce Power) ; Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (semble); Katzenbach v. McClung, 379 U.S. 294 (1964) (semble); Wickard v. Filburn, 317 U.S. 111 (1942) (upholding farm quota legislation under Commerce Power) ; NLRB v. Fainblatt, 306 U.S. 601 (1939) (upholding NLRA under Commerce Power) ; United States v. Darby, 312 U.S. 100 (1941) ki — Fair Labor Standards Act under Commerce ower). Title VII 42 U.S.C. 2000e et seq. applies to “persons engaged in an industry affecting commerce.” § 2000(e) (b). And Section 701(b) of the 1964 Civil Rights Act states Congress’ conclusion that Title VII is necessary to remove obstructions to the free flow of interstate and foreign commerce. 103. Indeed the original proponents of the Ku Klux Klan Act did not base their claim of power entirely on the Fourteenth Amendment. See e.g. Remarks of Rep. Shellabarger, Cong. Globe 477-78 (referring to aiesa ment to § 2 “so far as it is not confined to infractions of rights which are clearly independent of the Fourteenth Amendment, referable to and sustained by the old pro- visions of the Constitution”); Remarks of Rep. Bing- ham, id. at App. 81 (“It was always competent for the Congress of the United States by law to enforce every affirmative grant of power... .’’). 48 : Appendix A—Opinion of the Court. Thus, as observed earlier, in 1885 the Court in United States v. Waddell,194 upheld a prosecution under § 1985 (3)’s criminal counterpart, 18 U.S.C. § 241,195 for a conspiracy to harass and attack a homesteader exercis- ing rights conferred by Congress through legislation authorized by Article IV Section 3.196 In rejecting the argument that the legislation was unconstitutional, the Court said: Whenever the acts complained of are of a character to prevent [exercise of a statutory right] or to throw obstruction in the way of exercising this right and for the purpose and with intent to pre- vent it... because it is a right asserted under the law of the United States and granted by that law, those acts come within the purview of the statute and of the constitutional power of Congress to make such a statute.107 Eighty years later in United States v. Johnson,198 also discussed above, the Supreme Court reversed the dismissal of an indictment under § 241 of “hoodlums’”’ who conspired to assail black persons for exercising their right to equality of public accommodations under the 1964 Civil Rights Act. In the interim, the Supreme Court decided no case casting doubt on the constitu- tional power of Congress to provide sanctions for the interference by private parties with rights conferred by 104. 112 U.S. 76 (1884). 105. Supra note 63. 106. 112 US. at 79. 107. Id. at 80. 108. 390 U.S. 563 (1968). a 49a Appendix A—Opinion of the Court. a validly enacted federal statute, and we are aware of no recent decisions doing so,109 We therefore conclude that § 1985(3) may protect a plaintiff injured by acts done in furtherance of a con- spiracy to violate the rights of female employees under Title VII without exceeding Congress’ powers under the commerce clause.110 109. Between 1884 and 1968 prosecutions under § 241 were sustained in vindication of the right to vote, United States v. Classic, 313 U.S. 299 (1941); the right to travel, United States v. Guest, 383 U.S. 745 (1966) ; the right to be free of violence while in the custody of a federal marshal, Logan v. United States, 144 U.S. 263 (1892); the right to have one’s vote counted, United States v. Mosely, 238 U.S. 383 (1915). It should also be noted that litigation under § 241 establishes that the right of a citizen of the United States to inform the government of violation of federal l.ws can constitutionally be protected by federal legisla- tion. Motes v. United States, 178 U.S. 458, 462 (1900) (“It was the right and privilege of Thompson [who was shot by the de badantel in return for the protection he enjoyed under the Constitution and laws of the United States to aid in the execution of the laws of his country by giving information to the rip aed authorities of viola- tions of those laws. That right and privilege may prop- erly be said to be secured by the Constitution and laws of the United States) see In re Quarles, 158 U.S. 532 (1895). The same principle may also extend to protect the right to attempt to persuade others to comply with the laws of the United States. 110. It has also been suggested that Congress may reach private discrimination against women under its Thirteenth Amendment enforcement power. Note, Fed- eral Power to Reach Private Discrimination, swpra note 10 at 505. Cf. McDonald v. Santa Fe Rail Transp. Co., 427 U.S. 273, 285-296 (42 U.S.C. § 1981, enacted under the 13th Amendment protects whites against racial dis- crimination) ; Graham v. Richardson, 403 U.S. 365, 377 (1971) (aliens protected by § 1981). Appendix A—Opinion of the Court. D. Conspiracy The final salvo launched by the defendants against Novotny’s § 1985(3) count, and the one that succeeded in the district court, finds its basis in the theory that the defendants are immune to suits under § 1985(3) be- cause the alleged combination occurred among officers and directors of a single corporation. Defendants do not appear to challenge the fact that, while not artfully pleaded, the complaint adequately sets forth the claim that Novotny was victimized by a con- spiracy.111 Rather, the defendants maintain that their alleged concerted action was taken in their official ca- pacities as offices and directors of GAF,1!12 and there- fore cannot legally be deemed a combination within the terms of § 1985(3). Since the application of § 1985(3) to this case finds ample support in the commerce clause, however, we need not reach this argument. 111. The —— —— that the individual de- fendants ‘embarked upon and pursued a course of con- duct the effect of which was to deny” equal eraployment rights, {| 16, and that the “course of conduct constitutes an ongoing discrimination.” {| 18 Novotny further al- leged that he was injured “as a result of the conspiracy by the individual defendants,” and sets forth the man- ner in which the joint action of the defendants allegedly injured him. {| 30, 31, 32. Such a complaint adequately alleges a conspiracy for purposes of a Rule 12b(6) mo- tion. See Weise v. Syracuse University, 522 F.2d 397, 408 (2d Cir. 1975) (“Sketchy” conspiracy allegations are sufficient where “action by the defendants collec- tively, in concert, and with invidious intent” is al- leged) ; Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973) (allegation of “collusion” adequately raises issue of conspiracy). 112. Novotny indeed pleads that the individual de- fendants acted on behalf of GAF. Complaint: 33. 5la Appendix A—Opinion of the Court. This contention finds no support in the language of § 1985(3). On its face, the statute requires simply that “two or more persons” conspire in order to come within its proscription.113 Similarly, we can discern no basis for the defendants’ argument in the legislative history of § 1985(3). Nor does defendants’ suggestion have solid roots in the general tenets of conspiracy theory. It is true that a conspiracy requires a plurality of legal personalities as one of its elements. For example, at common law a hus- band and wife could not conspire, since they constituted a single personality in the eyes of the law.114 But it is well-settled that an employer can conspire with his em- ployee,115 and the Supreme Court has held that a labor union can conspire with its business agent.116 The as- sertion of the defendants must therefore be that incor- poration confers on corporate employees an immunity from liability under § 1985(3). We see nothing in the policies undergirding § 1985 (3) that would support such an argument. If, as seems clear under § 1985(3), the agreement of three partners to use their business to harass any blacks who register to vote constitutes an actionable conspiracy, we can per- 113. And the Supreme Court noted in Griffin that “The approval of this Court to other Reconstruction Civil Rights statutes has been to accord [them] a sweep as broad as their language.” 103 U.S. at 97. 114. 1 Hawkins, Pleas of the Crown 351 (6th Ed. 1788). Cf. United States v. Dodge, 364 U.S. 51 (1960) (repudiating this principle). 115. See e.g. Hyde v. United States, 225 U.S. 347, 367-68 (1912). 116. See Duplex Printing Press Co. v. Deering, 254 U.S. 443, 465 (1921). 52a Appendix A—Opinion of the Court. ceive no function to be served by immunizing such ac- tion once a business is incorporated. The defendants place primary reliance on the legal precept that a corporation cannot conspire with its offi- cers because a person cannot conspire with himself.117 Under this precept, they argue, no conspiracy exists in this case because the defendants were all officers and directors of a single corporation, and the actions injur- ing Novotny were taken in the course of their duties as such. As we read Novotny’s complaint, however, it does not allege that the corporate entity, GAF, conspired with its officers and directors to his detriment. In de- fining his cause of action under § 1985(3), Novotny alleges that his termination was accomplished “by the individual defendants in violation of’ § 1985(3).118 There is thus no occasion to evaluate the force of the proposition that a corporation cannot conspire with it- self. Rather, the sole issue before us, so far as the con- spiracy element is concerned, is whether concerted ac- tion by officers and employees of a corporation, with the 117. The fountainhead of this precept is Nelson Radio & Supply Co. v. Motorola Inc., 200 F.2d 911, 914-15 (5th Cir. 1982 . In Nelson, an antitrust action, the plain- tiffs alleged a conspiracy between the defendant corpo- ration and its employees, but named only the corporation as a defendant. The Fifth Circuit dismissed the suit. In Johnston v. Baker, 445 F.2d 424 (3d Cir. 1971), a anel of this Court characterized our earlier approval of elson in Goldlawr, Inc. v. Shubert, 276 F.2d 614 (3d Cir. 1960) as dictum and declined “to pass on the viabil- ity of” the Nelson doctrine, 118. { 28. Similarly, {| 30, 31 and 32 refer to a conspiracy “by the individual defendants.” 53a Appendix A—Opinion of the Court. object of violating a federal statute, can be the basis of a § 1985(3) complaint. In Mininsohn v. United States,119 Jacob and Max Mininsohn, the officers of Interstate Lumber Company, a corporation, caused the company to deliver under- weight bags of cement to a government construction project. Jacob Mininsohn and Interstate were charged with violation of legislation prohibiting conspiracies to defraud the United States Government. On appeal, it was alleged that the evidence was insufficient to convict Jacob Mininsohn, Judge Biggs had no difficulty in con- cluding that “the acts of the appellant and his brother were such as indicated the existence of a conspiracy to defraud the United States,.”120 This determination is in accord with a well-established line of precedent holding that, at least outside of the area of antitrust law,12! 119. 101 F.2d 477 (3d Cir. 1939). 120. Id. at 478. The only point deemed a of legal analysis was whether the corporation could be found guilty of conspiracy. Judge Biggs concluded that + a conviction was in accord with “well settled law.” 121. A distinct line of precedent has developed re- garding “conspiracies or combinations in restraint of trade” violating the Sherman Antitrust Act, 15 U.S.C. § 1, and the conditions under which a corporation can be considered to have combined or conspired with its officers or subsidiaries. See Columbia Metal Culvert Co. v. Kaiser Aluminum & Chemical Corp., No. 77-1846 (3d Cir, 1978) slip op. at 21-22, n.49 and cases and sources cited therein. The considerations which shape this antitrust doc- trine, rooted in the tension between the policy of pre- serving and fostering competition and the interest in not intermeddling unnecessarily in the internal entrepreneu- rial decisions of companies, do not lie paraliel to the 54a Appendix A—Opinion of the Court. where a corporation commits a substantive crime, the officers and directors who cause it to so act may be guilty of criminal conspiracy.122 Similarly, the sole Supreme Court decision to shed direct light on the issue before us undercuts the defend- ants’ position. In Pennsylvania RR. System & Allied Lines Fed. No. 90 v. Pennsylvania RR. Co.123 a labor union brought suit against an employer and its officers, claiming that under the predecessor to 18 U.S.C. § 241, the actions of the corporation and officers in resisting balance of concerns embodied in § 1985(3). For example, while almost any decision by a corporation may have an effect on competitors, and thereby come within the potential purview of the antitrust law, cf. Chicago Board of Trade v. United States, 246 U.S. 231, 238 (1918), only a limited number of decisions will impact on “equal pro- tection” and “equal privileges and immunities,.’’ Con- versely, while courts have interpreted economic efficien- cies and pro-competitive effects to constitute justifica- tions for certain restraints of trade we discern no indi- cation that similar defenses would gaa a conjuration to deprive a minority of equal rights. 122. See Egan v. United States, 137 F.2d 369 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2013%3A01. Public record. Not legal advice.