# Amicus Brief — Great American Federal Savings & Loan Ass'n v. Novotny

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1979
- **Citation:** 442 U.S. 366

## Text

pupreme Uourt, U. 9

FiLs D
' MAR 1 1979

MIGHABL RODAK, JR., CLERK

A COD

IN THE
Siyrenw Court of the United States

OCTOBER TERM, 1978
No. 78-753

GREAT AMERICAN FEDERAL SAVINGS & LOAN ASSO-
CIATION, JOHN A. VIROSTEK, JOSEPH E. BUGEL,
JOHN J. DRAVECKY, DANIEL T. KUBASAK, EDWARD
J. LESKO, JAMES E. ORRIS, JOSEPH A. PROKOPO-
VITSH, JOHN G. MICENKO AND FRANK J. VANEK,

7 Petitioners,

JOHN R. NOVOTNY,
Respondent.

On Writ of Certiorari to the United States
Court of Appeals for the Third Circuit

BRIEF ..MICUS CURIAE OF THE
EQUAL EMPLOYMENT ADVISORY COUNCIL

AVRUM M. GOLDBERG
WILLIAM R. WEISSMAN
WALD, HARKRADER & Ross
1320 Nineteenth Street, N.W.
Washington, D.C. 20036
(202) 296-2121
Of Counsel:

ROBERT E. WILLIAMS

DouGLas 8. MCDOWELL
McGUINESS & WILLIAMS
1747 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
(202) 296-0333

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

>

TABLE OF CONTENTS

Page
ZABLE OF AUTHORITIG ...........0c00cccccccccccesscocessessess# II
STATEMENT OF THE CASE ....0000000000.00.c0cccceccces seiadbe 3
SUMMARY OF ARGUMENT. ...............ccccccccccsccossssccsseese
a sesnmiinuasononensesnnacers 8

I. SECTION 2 OF THE KU KLUX KLAN
ACT OF 1871 IS NOT AN ALTERNATIVE
MECHANISM FOR ENFORCING RIGHTS
CREATED BY TITLE VII OF THE CIVIL
RIGHTS ACT OF 1006 occ... .

A. Section 1985(3) Has No Application to
Federal Statutory Rights For Which Con-
gress Has Provided A Self-Contained En-
a 10

B. Title VII Establishes An Exclusive Com-
prehensive Scheme For Enforcing The
Rights Created By That Title ............. i 15

Il. THE ALLEGATION OF A CONSPIRACY
AMONG THE OFFICERS AND DIRECTORS
OF A SINGLE CORPORATION ACTING ON
BEHALF OF THE CORPORATION DOES
NOT SATISFY THE “TWO OR MORE PER-
SONS” ELEMENT OF 42 U.S.C. § 1985 (38)...... 23

os Se ducsensilecdhsntcenhinibbulamecsadtinsnds 30

II
TABLE OF AUTHORITIES
CASES: Page
Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971)
NE sais ntas cciacsehscad be cacheniniieeeebinoindaaeadhbahanabdesonebicans 22
Albemarle Paper Co. Vv. Moody, 422 U.S. 405
ET a ENE RAC a TERA a Od OU ED 14
Alexander v. Gardner-Denver Co., 415 U.S. 36
| __ ARPRSED Soe OE Re Re Pere ne nA ee 17, 18, 21, 22
Arthur v. Kraft-Phenix Cheese Corp., 26 F. Supp.
FB ) RRA ES Soe cere 25
Baker v. Stuart Broadcasting Co., 505 F.2d 181
i I ceiebinaisuabeumete 24, 25
Beacon Fruit & Produce Co. v. H. Harris & Co.,
152 F. Supp. 702 (D. Mass. 1957) ..................00000. 27
Bellamy v. Mason’s Stores, Inc., 508 F.2d 504 (4th
Si eR EER aa le lr Nae ROSNER 22, 24
Boys Market, Inc. vy. Retail Clerks Union, 398 U.S.
REA ES A RERIIE eS Elana ee 11
Brown Vv. GSA, 425 U.S. 820 (1976)......6, 15, 16, 19, 20, 21
Califano v. Sanders, 430 U.S. 99 (1977) 0.000000... 16
Cameron V. Brock, 473 F.2d 608 (6th Cir. 19738)... 19

Chambliss v. Foote, 421 F. Supp. 12 (E.D. La.
1976), aff’d per curiam, 562 F.2d 1015 (5th Cir.
1977), cert. denied, 489 U.S. ——, 99 S. Ct. 127
PSS VERD Re 07 A Da Ae sie Oe A 24

Cohen Vv. Illinois Institute of Technology, 524 F.2d
818 (7th Cir. 1975), cert. denied, 425 U.S. 948

gS a ESP ae Sal A IOP Ue SILL Ea Ge a 22
Cole v. University of Hartford, 391 F. Supp. 888

uit cesdaubanabien 27
Coley v. M&M Mars, Inc., —— F. Supp. ——, 18

FEP Cas. 1809 (M.D. Ga. 1978) 000... 28
Davis v. United States Steel Supply, 581 F.2d 335

OIE INSEE ie ore a ee 19
Distriét of Columbia v. Carter, 409 U.S. 418

RESIST ec TaD Saree A i ae erie a ei Ra 11, 12
Dombrowski v. Dowling, 459 F.2d 190 (7th Cir.

EF Re PEE Ss ERTS Le A SAME A ea RR ee ew Rye Rs 24, 25, 27, 28
Dorsey V. Chesapeake and Ohio Railway, 476 F.2d

BE Wy ME BIE goo, occ convascaccouaesccnnidasivcnceduacocancsons 25

Doski v. M. Goldseker Co., 589 F.2d 1826 (4th Cir.
ae 21, 22

Ill

TABLE OF AUTHORITIES—Continued

Page
Dupree Vv. Hertz Corp., 419 F. Supp. 764 (E.D.
Bis ROG DO: Seecsncibtnsacceslctacisidiatiactacaeeatite cape 28
Egan v. United States, 187 F.2d 369 (8th Cir.),
cert. denied, 320 U.S. 788 (1948) 00.0.0... 29
Fallis v. Dunbar, 582 F.2d 1061 (6th Cir. 1976)... 24

Girard Vv. 94th St. & Fifth Ave. Corp., 580 F.2d 66
(2d Cir.), cert. denied, 425 U.S. 974 (1976)...... 24, 28
Goldlawr, Inc. v. Shubert, 276 F.2d 614 (8d Cir.

TOIND ecissckemesllie scnddencsrbebbcivenadteietatnetel ie Oe ere 25
Greenville Publishing Co. v. Daily Reflector, Inc.,

496 F.2d 891 (4th Cir. 1974)... 24, 25, 27
Griffin v. Breckenridge, 408 U.S. 88 (1971) ...000000.... 7,8, 9,

: 10, 13
H.&B. Equipment Co. v. International Harvester

Co., 577 F.2d 289 (5th Cir. 1978) ........ secidta cease 25, 27
Hodgin v. Jefferson, 447 F. Supp. 804 (D. Md.

| ORB a esc oes Pm Ebley ARs iPOD er a a Oe 2 11, 16
International Brotherhood of Teamsters v. Daniel,

— US. , 99 S. Ct. 790 (1979) .................. 16
International Brotherhood of Teamsters v. United

Bemba, GEE. Gite TIO TOAD. sensstacudossdcdcosesecessdessncss 8,14
International Union of Electrical Workers vy. Rob-

bins & Myers, Inc., 429 U.S. 229 (1976) ............ 8, 21
Jackson V. University of Pittsburgh, 405 F. Supp.

Be Ce Bt. NE hte teataleceitee tn 28
Johansen Vv. United States, 348 U.S. 427 (1952)... 16
Johnson V. Railway Express Agency, Inc., 421 U.S.

Re Ee odittlnad iar ets 8 21, 22, 29
Johnson V. University of Pittsburgh, 435 F. Supp.

RE Ce NG ED cccinictnantnctdeaddensscicensascensocmasss 28

Johnston v. Baker, 445 F.2d 424 (8d Cir. 1971).... 25, 27
Jones V. Tennessee Eastman Co., 397 F. Supp. 815

(E.D. Tenn. 1974), aff'd mem., 519 F.2d 1402

SR ri MI iceciadaeihctinlateicinbedices Gua toceideddans 24
Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke

& Liquors, Ltd., 416 F.2d 71 (9th Cir. 1969),

cert. denied, 396 U.S. 1062 (1970) .....0000 24, 25

IV

TABLE OF AUTHORITIES—Continued

Koehring Co. v. National Automatic Tool Co., 257
F, Supp. 282 (S.D. Ind. 1966), aff’d per curiam,
SEB F.Bd 414 (Tt Civ. 1067). .......ccccccsccsscccccscccssees

Local No..1 (ACA) Vv. International Brotherhood
of Teamsters, 419 F. Supp. 268 (E.D. Pa. 1976)..

Lorillard v. Pons, 484 U.S. 575 (1978) ............ ida

Lynch v. Household Finance Corp., 405 U.S. 538
CRT IED ccsainscssnsasicideudeunesninddicdbaddbebienbiacapbanbenesdinlihteds

McLellan Vv. Mississippi Power & Light Co., 545
F.2d 919 (5th Cir. 1977) (en banc) .......... TREND

Monell v. Department of Social Services, 436 U. S.
© Ce anacectscSectetaceceassettstencecanteneiecutatecmn

Monroe V. Pape, 365 U.S. 167 (1961).......... 8, 11, 12,

Morton Buildings of Nebraska, Inc. v. Morton
Buildings, Inc., 581 F.2d 910 (8th Cir. 1976)......
Murphy v. Operating Engineers, Local 18, ——
F. Supp. ——, 99 L.R.R.M 2074 (N.D. Ohio
|) | SRE PP CY ET ame LTR SE LU
Nelson Radio & Supply Co. Vv. Motorola, Inc., 200
F.2d 911 (5th Cir. 1952), cert. denied, 345 U.S
GID: CIS. svcoctansevaiacrastardhsaelicteateteatehasnes
Neumann V. Bastian-Blessing Co., 70 F. Supp. 447
CPEB. Tide: BIG Y seckertcecserciessteasaaniiabetiannade
New York Central & Hudson River Railroad vy.
United States, 212 U.S. 481 (1909) .........00000000....
Occidental Life Insurance Co. v. EEOC, 482 U.S.

Te: GREED ccncsctnseicipvcsedncnssntscapeunsacstenasan 17, 18, 19,

Pearson V. Youngstown Sheet and Tube Co., 332
F.2d 439 (7th Cir.), cert. denied, 379 U.S. 914
CRED vencsncanistnsicnrnspnineencciddsianphiccianianu eee

Person Vv. New York Post Corp., 427 F. Supp. 1297
(E.D.N.Y.), aff'd mem., 573 F.2d 1294 (2d Cir.
BODE: naccrcoivaiskecanistisdscsipiescuetsediaenieaenee meannane

Poller v. Columbia Broadcasting System, Inc., 284
F.2d 599 (D.C. Cir. 1960), rev’d, 368 U.S. 464

COIIIIED cecieseressnessasesnsacecegubiastoeseniuansenenainanaedl 24,

Preiser V. Rodriguez, 411 U.S. 475 (1978) .............

Page

26

11
19

12
22

12

25

ll

24, 25

29

20, 21

25, 26
16, 19

V

TABLE OF AUTHORITIES—Continued

Page
Rackin v. University of Pennsylvania, 886 F.

RU, CE Cie eke CED ickcsctcevevcccsvcesceevsncesees: 28
Regents of the University of California v. Bakke,

Be I PI inks oc che secasaccahaetnenctboaeuanse 3
Richerson Vv. Jones, 551 F.2d 918 (8d Cir. 1977)... 19
Rosenfeld v. Southern Pacific Co., 444 F.2d 1219

EE is) TTT IRE csc atscceneahidsendcinbichcnceiebbiekbinetetousesnxnsonses 9
Scott v. Board of Education, —— F. Supp. ——,

18 FEP Cas. 1280 (D. Md. 1977) .........0.0000000..... 29
Slack v. Havens, 522 F.2d 1091 (9th Cir. 1975).... 19
Tamaron Distributing Corp. v. Weiner, 418 F.2d

ee ED atistibiatenitenanbtcicctuicencnstadsnennsseases 25
Trustees of Dartmouth College v. Woodward, 17

U.S. (4 Wheat.) 518 (1819) .................000 ee. 24
United Air Lines, Inc. v. Evans, 481 U.S. 553

ROUTED dedishenigsroibsosnedetaeine dake d mehcelapanaieatabiabanaisoionsanidesodss 8,19
United States v. Hilton Hotels Corp., 467 F.2d

1000 (9th Cir. 1972), cert. denied, 409 U.S. 1125

PURINE. cod cp chceonankediasenaitusednadabeumnclneebienbieadcdsas Whvwcudea 29
Walker v. Providence Journal Co., 498 F.2d 82

I Sa EPURD” hcnnisieletcedanicntehaeeveecteicesatanccimisatenl 24, 25
Willingham v. Macon Telegraph Publishing CS,

507 F.2d 1084 (5th Cir. 1975) . * 9
Zelinger Vv. Uvalde Rock Asphalt Co., “316 F, 2d AT

EG MII oDesk niicatsentnicdhenniubccvesaandnadssanses 24, 26

STATUTES:

Act of March 8, 1875, § 1, 18 Stat. 470 (1875)...... 12

Civil Rights Act of 1870, 16 Stat. 144 (1870):
42 U.S.C. § 1981 ................ RAS ae Ee nN ARIPO 21

Civil Rights Act of 1964:
Title VII, 42 U.S.C §§ 2000e et seq. ......00000000.... 2
§ 708 (a), 42 U.S.C. § 2000e-2(a) 20... 17
§ 704 (a), 42 U.S.C. § 2000e-3(a) o.oo. 3, 4, 6, 9, 14
§ 706(b), 42 U.S.C. § 2000e-5(b) ooo. 16
§ 706 (b)-(e), 42 U.S.C. § 2000e-5 (b)-(e) ...... 17
§ 706 (f) (1), 42 U.S.C. § 2000e-5 (f) (1) .......... 17

VI

TABLE OF AUTHORITIES—Continued

Page
§ 706 (7), 42 U.S.C. § 2000e-5 (2) oo... 17, 19, 20
§ 717, 42 U.S.C. § 2000e-16 ooo... iain 15, 16
Fair Labor Standards Act of 1938:
© FOUR), BP Us B BAG CD) vaccccccceccccccccceccccssicees 15
Ku Klux Klan Act of 1871, 17 Stat. 18 (1871):
TA LRA SR NGA eee ie Seen e ED 12
Ry Ey Oe IED chvevccnvasuoscnasenicshinassdsnceseeentcnad passim

LEGISLATIVE MATERIALS:
CONG. GLOBE, 42d Cong., Ist Sess., App. 85 (1871).. 12

App. 158 .............. 12
Pee 12
App. 8744 .............. 8
ROR 13

SENATE COMMITTEE ON LABOR & PUBLIC WELFARE,
92d CONG., 2d SEss., LEGISLATIVE HISTORY OF
THE EQUAL EMPLOYMENT OPPORTUNITY AcT of

PE IEE “cnsnsiceconaccnacsnceussnnsennsonch Cbubidinsitiaaockaa 18, 23, 29
MISCELLANEOUS:
1971-1972 Annual Survey of Labor Relations Law,
13 B.C. INDus. & Com. L. REv. 1847 (1972)........ 21
2 BLACKSTONE, COMMENTARIES (Tucker ed. 1803).. 24

Comment, Private Conspiracies to Violate Civil
Rights: McLellan v. Mississippi Power & Light

Co., 90 HARV. L. REV. 1721 (1977) .00.0.0.e. 22, 25
FRIENDLY, FEDERAL JURISDICTION: A GENERAL
We RRR vsecescnconsesninansedtincijasansanchionnvunpescenmbuabesisns 19, 20

Leach, Title VII of the Civil Rights Act and the
EEOC: An Agency in the Midst of Change, 29
MERCER L. REV. 661 (1978) .....00....cccccccccceeeeeeeeeeeee 20

Note, Developments in the Law—Employment Dis-
crimination and Title VII of the Civil Rights
Act of 1964, 84 Harv. L. REv. 1109 (1971)... 9,18

Vil

TABLE OF AUTHORITIES—Continued

Note, Federal Power to Regulate Private Discrimi-
nation: The Revival of the Enforcement Clauses
of the Reconstruction Era Amendments, 74
COLUM. L. REV. 449 (1974) ..0.........:ccccceccccceeeeeeeeees

Note, Intra-Enterprise Conspiracy Under Section
1 of the Sherman Act: A Suggested Standard,
76 Mic. L. RBV. 717 (1977) ..........cccccccecessccoececess

Note, The Scope of Section 1985(3) Since Griffin
v. Breckenridge, 45 Gro. WASH. L. RFy. 239
CICS itsxisnascniieiinnicideiidlindsendiddaiinniniassas Bethea dae

Sape & Hart, Title VII Reconsidered: The Equal
Employment Opportunity Act of 1972, 40 GEo.
Wash. L. REV. 884 (1972) ...................................

Willis & Pitofsky, Antitrust Consequences of Us-
ing Corporate Subsidiaries, 48 N.Y.U.L. REv.
ae sees

13 WRIGHT, MILLER & COOPER, FEDERAL PRACTICE
AND PROCEDURE § 3561 (1975) ...... LSE ERS OO

Page

22

25

22

19, 20

25

12

IN THE
Supreme Court of the United States
OCTOBER TERM, 1978

No. 78-753

GREAT AMERICAN FEDERAL SAVINGS & LOAN ASSO-
CIATION, JOHN A. VIROSTEK, JOSEPH E. BUGEL,
JOHN J. DRAVECKY, DANIEL T. KUBASAK, EDWARD
J. LESKO, JAMES E. ORRIS, JOSEPH A. PROKOPO-
VITSH, JOHN G. MICENKO AND FRANK J. VANEK,

Petitioners,
V.

JOHN R. NOVOTNY,
Respondent.

<. jreoromaesy

On Writ of Certiorari to the United States
Court of Appeals for the Third Circuit

BRIEF AMICUS CURIAE OF THE
EQUAL EMPLOYMENT ADVISORY COUNCIL

INTEREST OF THE AMICUS CURIAE

This brief of the Equal Employment Advisory
Council (“EEAC”’) as amicus curiae in support of
the petitioners is submitted with the written consent

2

of all parties." EEAC is a voluntary nonprofit asso-
ciation organized to promote the common interest of
employers and the general public in the development
and implementation of sound government policies,
procedures and requirements pertaining to nondis-
criminatory employment practices. Its membership
comprises a broad segment of the employer com-
munity in the United States, including both individual
employers and trade associations. Its governing body
is a Board of Directors composed primarily of spe-
cialists in the field of equal employment opportunity,
whose combined experience gives the Council a unique
depth of understanding of the practical and legal
considerations of EEO policies and requirements.
Substantially all of EEAC’s members, or their con-
stituents, are employers subject to the provisions of
Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seg., and 42 U.S.C. § 1985(3),
as applied by the Court below, as well as other equal
employment statutes and regulations. Most of
EEAC’s member representatives—many of whom are
corporate officers—are charged with corporate re-
sponsibility for compliance with the various federal,
state and local statutes, regulations and orders deal-
ing with equal employment opportunity. As such,
they have a direct interest in the principal issue pre-
sented by the instant case—i.e., whether 42 U.S.C.
§ 1985(3) applies to an alleged conspiracy among
the officers and directors of a single corporation to
violate Title VII. EEAC previously filed a brief
amicus curiae in this case supporting the petition
for certiorari.

‘Their consents have been filed with the Clerk of the

Court.

ee

oe Oe eS a ee

3

Because of its interest in issues pertaining to equal
employment, EEAC has filed briefs as amicus curiae
in a number of other recent cases in this Court rais-
ing important equal opportunity issues. See, e.g.,
Regents of the University of California v. Bakke, 438
U.S. 265 (1978); County of Los Angeles v. Davis,
pending, No. 77-1553; Kaiser Aluminum & Chemi-
cal Corp. v. Weber, pending, No. 78-435; Interna-
tional Brotherhood of Teamsters v. United States,
431 U.S. 324 (1977); United Air Lines, Ine. v.
Evans, 431 U.S. 553 (1977); and International Un-
ion of Electrical Workers v. Robbins & Myers, Inc.,
429 U.S. 229 (1976).

STATEMENT OF THE CASE

Respondent John R. Novotny brought this suit on
December 17, 1976, in the United States District
Court for the Western District of Pennsylvania, al-
leging that petitioner Great American Federal Sav-
ings and Loan Association and its officers and di-
rectors, the individual petitioners, terminated his em-
ployment as an officer of the Association in viola-
tion of 42 U.S.C. § 1985(3) and Section 704(a) of
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-3(a). Novotny alleged that on or about
January 22, 1975, at the Association’s annual meet-
ing, the Association and its officers and directors
failed to reelect him as an officer and terminated his
employment in retaliation for his earlier protest of
the Association’s alleged discrimination against cer-
tain of its female employees.

The Association having moved to dismiss Novotny’s
complaint, the district court on April 22, 1977, dis-

4

missed the complaint in its entirety. Pet. App. 76a.’
In an accompanying opinion, the district court held
that a conspiracy under §$ 1985(3) could not exist
because the complaint alleged that only one legal
entity, the Association, terminated Novotny. Pet.
App. 7la-73a. The court dismissed the Title VII
cause of action because in its view § 704(a), the
“retaliation” provision, did not protect Novotny’s
termination in the absence of any allegation that the
termination was connected with a Title VII en-
forcement proceeding. Pet. App. 73a-75a.

The Court of Appeals for the Third Circuit en
banc reversed the district court on August 7, 1978,
with respect to both counts of: the complaint. It held
that concerted action to deprive an employee of the
substantive rights conferred by Title VII could be
remedied under § 1985(3), and that the officers and
directors of a single corporation acting on its be-
half could form a conspiracy covered by § 1985(3).
Pet. App. 28a-29a, 36a-40a, 50a-55a. These are the
issues on which this Court granted certiorari and
are of particular concern to EEAC as amicus curiae.
The Court of Appeals also reinstated Novotny’s claim
under § 704(a), and no review of that determina-
tion has been sought. Pet. App. 56a-61a.

SUMMARY OF ARGUMENT
I.

The Third Circuit’s determination that 42 U.S.C.
§ 1985(3) provides a remedy for conspiratorial in-
ferences with an employee’s Title VII rights is based
on an expansive misreading of the statute and its

*“Pet. App.” refers to the appendix of the Petition for
Certiorari filed in this case.

5

legislative history.* The decision below, if sustained
by this Court, will lead to the application of § 1985
(3) to a host of federal statutory rights for which
Congress provided specific remedial schemes exclu-
sive of §$ 1985(3). It will also seriously undermine
the careful administrative/judicial balance Congress
adopted for redressing violations of Title VII of the
Civil Rights Act of 1964.

Section 1985(3) is the current codification of § 2
of the Ku Klux Klan Act of 1871, a statute aimed

*42 U.S.C. § 1985(3) provides as follows:

(3) If two or more persons in any State or Terri-
tory 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 per-
sons 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 constituted au-
thorities of any State or Territory from giving or se-
curing 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 giv-
ing his support or advocacy in a legal manner, toward
or in favor of the election of any lawfully quaiified per-
son as an elector for President or Vice President, or as
a Member of Congress of the United States; or to in-—
jure 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 furtherance
of the object of such conspiracy, whereby another is in-
jured in his person or property, or deprived of having
and exercising 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 occasioned by
such injury or deprivation, against any one or more of
the conspirators.

6

at providing a federal forum to protect citizens from
the violence of the Ku Klux Klan. In the years im-
mediately after the Civil War, protection of federal
constitutional rights—particularly those created by
the Thirteenth and Fourteenth Amendments—had
broken down in the Southern states. Since the state
courts were then the primary forum for the protec-
tion of federal rights, Congress created in the Ku
Klux Klan Act a limited federal forum not other-
wise available for redress of certain federal rights.
Its aim was not to create parallel remedies where
an effective remedy—particularly in a federal court
—was already available.

The plaintiff in this case, Novotny, has available
to him an effective federal court remedy provided
by § 704(a) of Title VII, 42 U.S.C. § 2000e-3(a).
Title VII creates both administrative and judicial
remedies aimed first at promoting voluntary compli-
ance with Title VII via administrative conciliation,
and then, if conciliation fails, at securing the most
complete relief possible via federal court litigation.
Its “careful blend of administrative and judicial en-
forcement powers” provides the exclusive means for
redressing violations of the statute. See Brown v.
GSA, 425 U.S. 820, 833 (1976). Although, to be
sure, Congress contemplated that Title VII would not
supplant pre-existing statutory prohibitions against
employment discrimination, there is nothing in the
legislative history of Title VII indicating that Con-
gress intended that remedies outside of the Title VII
scheme would apply to discrimination claims based
on Title VII.

7

II.

Section 1985(3) would not, in any event, be ap-
plicable to this case because the complaint does not
establish the existence of “two or more persons,”
the essential ingredient of a conspiracy. Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971). The only
individuals claimed to have engaged in a conspiracy
in this case are the officers and directors of the As-
sociation, all of whom, according to the complaint,
“were and are acting on behalf of’ the Association.
Pet. App. 83a. Under long-settled and widely fol-
lowed principles of civil conspiracy law, the officers
and directors of a single corporation acting on its
behalf are the corporation’s agents, and together with
the corporation constitute a single legal personality.
To find a conspiracy in such a circumstance would
amount to helding that the corporation conspired
with itself. This is contrary to principles long ad-
hered to in various civil law contexts, including
cases in the antitrust, contracts and civil rights fields.
Except for the Third Circuit, every Court of Ap-
peals follows the traditional rule and it should not
now be overturned.

8
ARGUMENT

I. SECTION 2 OF THE KU KLUX KLAN ACT OF 1871
IS NOT AN ALTERNATIVE MECHANISM FOR
ENFORCING RIGHTS CREATED BY TITLE VII
OF THE CIVIL RIGHTS ACT OF 1964,

In Griffin v. Breckenridge, 403 U.S. 88 (1971),
this Court resurrected the long dormant Section 2
of the Ku Klux Klan Act of 1871 (Act of April 20,
1871, ch. 22, 17 Stat. 13), now codified as 42 U.S.C.
§ 1985(3). The case involved four black individuals
who were traveling along the highways of Kemper
County, Mississippi. Two local white residents mis-
took the driver of the car of black men for a civil
rights worker and blocked the car on the highway.
The occupants were forced out, held at bay with
firearms, threatened with murder, and then beaten
with “deadly blackjacks, pipes or other kinds of
clubs.” Jd. at 90-92. The facts of Griffin would fit
without alteration in the list of outrages described
by the Members of the 42d Congress that enacted
the Ku Klux Klan Act:

While murder is stalking abroad in disguise,
while whippings and lynchings and banishment
have been visited upon unoffending American
citizens, the local administrations have been found
inadequate or unwilling to apply the proper
corrective. Combinations, darker than the night
that hides them, conspiracies, wicked as the
worst of felons could devise, have gone unwhipped
of justice.

CoNnG. GLOBE, 42d Cong., Ist Sess., App. 374 (1871),
quoted in Monroe v. Pape, 365 U.S. 167, 175 (1961).

9

Mr. Justice Stewart, writing for the Court in
Griffin, appropriately characterized the facts as “so
close to the core of the coverage intended by Congress
that it is hard to conceive of wholly private conduct
that would come within the statute if this does not.”
Griffin, supra, 403 U.S. at 103. But he aiso made
clear that § 1985(3) is limited in scope, and is aimed
only at conspiracies in which there is “some racial,
or perhaps otherwise class-based, invidiously dis-
criminatory animus... .” Jd. at 101-02. The Court
declined to decide whether § 1985(3) extends beyond
a racially motivated discriminatory intent (7d. at 102
n.9), but warned of the “constitutional shoals that
would lie in the path of interpreting § 1985(3) as a
general federal tort law....” Id. at 102.

The present case, involving an alleged retaliatory
discharge of a white male bank employee, is a far cry
from Griffin and the concerns of the Congressional
sponsors of § 1985(3). Novotny’s claim involves no
highway marauders, .no violence or terror, no racial
discrimination, and no interference with a constitu-
tional right to be free of discrimination. If Novotny’s
dismissal from his job were to be held unlawful,
it would only be if the facts established a violation
of §704(a) of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-3(a), which makes it unlawful to
retaliate against an employee because he has op-
posed a practice forbidden by Title VII. However
reprehensible one may regard such conduct, such a
dismissal by a private employer was not unlawful
prior to the enactment of Title VII in 1964. See,
e.g., Willingham v. Macon Telegraph Publishing
Co., 507, F.2d 1084, 1090-91 (5th Cir. 1975) (en
bane); Rosenfeld v. Southern Pacific Co., 444 F.2d
1219, 1225 (9th Cir. 1971); Note, Developments
in the Law—Employment Discrimination and Title

10

VII of the Civil Rights Act of 1964, 84 Harv. L.
REV. 1109, 1167 (1971).

The Court of Appeals held that Novotny’s allega-
tions, if proved, would constitute a violation of § 704
(a) (Pet. App. 59a-60a), and that holding has not
been challenged in this Court. It is therefore clear
that Novotny will have a chance to prove his claim,
and if he is successful, will be eligible for all the re-
lief provided by Title VI{. The sole issue here is
whether he should receive additional relief, such as
compensatory or punitive damages against the indi-
vidual defendants, under 42 U.S.C. § 1985(3).

As we shall show below, the Ku Klux Klan Act was
never intended to provide an additional or supple-
mental remedy for violations of federal rights for
which other specific remedies are provided by federal
law. See pp. 10-14 infra. If it were now to be so
construed, it would indeed be converted into “a gen-
eral federal tort law.” Griffin, supra, 403 U.S. at
102. Moreover, as we shall also show, the language
and legislative history of Title VII make clear that
its remedies were intended to be the exclusive means
for redressing Title VII violations. See pp. 15-23
infra. To grant Novotny a cause of action under
42 U.S.C. § 1985(3) for what is nothing more than
a violation of Title VII would fly in the face of that
clear Congressional intent.

A. Section 1985(3) Has No Application to Federal
Statutory Rights For Which Congress Has Provided
a Self-Contained Enforcement Scheme.

Although the Third Cireuit purported to hold that
§ 1985(3) applies only to the “deprivation of a right
secured by a federal statute guaranteeing equal em-
ployment opportunity” (Pet. App. 28a), the opinion

11

contains no basis for defining those federal statutory
rights reached by §1985(3) and those outside its
ambit. Under the court’s rationale, virtually any
right created by federal statute, particularly those
enacted under the Commerce Clause like Title VII,
could be enforced by § 1985(3).* This anomalous
result could only be reached, we believe, by failing
to place § 1985(3) in its historical context. See Dis-
trict of Columbia v. Carter, 409 U.S. 418, 420
(1973) ; ef. Boys Market, Inc. v. Retail Clerks Union,
398 U.S. 235, 250 (1970).

In this modern age when federal rights are rou-
tinely enforced in a federal judicial forum, it is easy
to overlook the revolutionary nature of the step Con-
gress took in 1871 when, it enacted the Ku Klux Klan
Act. See Monroe v. Pape, supra, 365 U.S. at 252-53
(Frankfurter, J., dissenting). At that time, there
was no federal question jurisdiction in the federal

. *The deprivation of a wide assortment of statutory rights,
including several based on Congress’ Commerce Clause power,
has already been held to state a cause of action under § 1985
(3) and indicates the potentially unlimited reach of the stat-
ute under the Third Circuit’s interpretation. See, e.g., Hodgin
v. Jefferson, 447 F. Supp. 804, 808 (D. Md. 1978) (violation
of Federal Equal Pay Act states claim under § 1985(3));
Local No. 1(ACA) v. Int’l Bhd. of Teamsters, 419 F. Supp.
263, 276 (E.D. Pa. 1976) (violation of Labor-Management
Reporting and Disclosure Act states claim under § 1985(3) ) ;
Murphy v. Operating Engineers, Local 18, =F. Supp. ——,
99 L.R.R.M. 2074, 2126 (N.D. Ohio 1978) (violation of Labor-
Management Reporting and Disclosure Act states § 1985(3)
claim). We believe these cases, like the decision below, to
have been wrongly decided.

12

courts.” Federal rights, whether constitutional or
statutory, were enforceable only in state courts sub-
ject to appellate review by the Supreme Court of the
United States. See id. at 252. State enforcement of
the rights created by the newly ratified post-Civil
War Constitutional amendments, however, had broken
down due largely to violent resistance by the Ku
Klux Klan. See Monroe v. Pape, supra, 365 U.S. at
172-73, quoting Message of President Grant, CONG.
GLOBE, 42d Cong., lst Sess. 244 (1871); see also id.
at 174-81. In direct response, Congress in 1871 cie-
ated a federal forum to secure the Fourteenth Amend-
ment rights against hostile or ambivalent state offi-
cials or non-official marauders. See District of Co-
lumbia v. Carter, supra, 409 U.S. at 428, 427-29
(1973) ; Lynch v. Household Finance Corp., 405 U.S.
538, 545 (1972); Monroe v. Pape, supra, 365 U.S.
at 171. Section 1 of the 1871 Ku Klux Klan Act, now
42 U.S.C. § 1983, was directed at constitutional de-
privations caused by official state action or neglect by
state officials. See CoNG. GLOBE, 42d Cong., 1st Sess.,
App. 85, 153 (1871), quoted in Monell v. Depart-
ment of Social Services, 436 U.S. 658, 685-86 n.45
(1978). Section 2, the precursor of 42 U.S.C. § 1985
(3), was aimed at private conspiracies—particularly
the Ku Klux Kian °—that interfered with or pre-
vented state officials from carrying out their duties
in enforcing the federal right to equal protection

* Federal question jurisdiction was first conferred on the
federal courts by the Act of March 3, 1875, § 1, 18 Stat. 470
(1875). See 18 WRIGHT, MILLER & COOPER, FEDERAL PRAC-
TICE & PROCEDURE § 3561, at 389 (1975); District of Colum-
bia v. Carter, 409 U.S. 418, 427 n.20 (1973).

® See Monell v. Dep’t of Social Services, 436 U.S. 658, 665 &
n.11 (1978).

13

of the law.’ Thus, with the enactment of the 1871
Ku Klux Klan Act, Congress sought to provide a
federal forum not otherwise available for redress of
federal rights.

When this Court in Griffin revitalized § 1985(3)
one hundred years after its enactment, it did so in
a case where the protection of the victimized black .
individuals would otherwise be dependent on the
state’s judicial system. Indeed, there is little to dis-
tinguish the Mississippi highway marauders described
in Griffin from the Klan whose activities a century
before inspired the precursor of $ 1985(3). In con-
trast, the plaintiff Novotny is far from dependent on
§ 1985(8) for a federal forum. He may have a

* This point is illustrated by the remarks of Representative
Poland during the debate on § 1985(3)’s ancestor:

... if a State shall deny the equal protection of the laws,
or if a State make proper laws and have proper officers
to enforce those laws, and somebody undertakes to step in
and clog justice by preventing the State authorities from
carrying out this constitutional provision, then I do claim
that we have the right to make such interference an of-
fense against the United States; that the Constitution
does empower us to aid in carrying out this injunction,
which, by the Constitution, we have laid upon the States,
that they shall afford the equal protection of the laws
to all their citizens. When the State has provided the
law, and has provided the officer to carry out the law,
then we have the right to say that anybody who under-
takes to interfere and prevent the execution of that State
law is amenable to this provision of the Constitution,
and to the law that we may make under it declaring it
to be an offense against the United States.

CONG. GLOBE, 42d Cong., Ist Sess. 514 (1871), quoted in
Monroe v. Pape, 365 U.S. 167, 201 n.10 (1961) (Harlan, J.,
concurring).

14

viable claim under § 704(a) of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a),
recognized as such by the Third Circuit (Pet. App.
59a-60a) and unchallenged here. Novotny is eligible
for relief in a federal court under a comprehensive
federal remedial scheme. If he proves his allegations
on remand, he would, like all other Title VII plain-
tiffs, be made “whole for injuries suffered on account
of unlawful employment discrimination.” Albemarle
Paper Co. v. Moody, 422 U.S. 405, 418 (1975); see
also International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 367 (1977).

The aim of the 42d Congress in enacting the Ku
Klux Klan Act was to provide one reliable forum to
protect federal rights, and not simply to create paral-
lel federal remedies where an adequate federal remedy
is already available. “[T]he dominant jurisdictional
thought of the day,” as Mr. Justice Frankfurter has
pointed out, was “‘that redress in a federal trial court
was ... to be very sparingly afforded.” Monroe v.
Pape, supra, 365 U.S. at 253 (dissenting opinion).
The Third Circuit’s expansion of § 1985(3) to create
a federal remedy paralleling an effective federal
remedy already in existence thus is inconsistent with
§ 1985(38)’s limited aim of protecting otherwise un-
protected federal rights.*

® Since § 1985(3) rarely, if ever, will be coextensive with
the federal remedy enacted as part of a substantive statutory
scheme, § 1985(3), if construed as providing a parallel rem-
edy to other federal relief, is likely to undermine the Con-
gressional judgment as to particular forms of relief or types
of enforcement mechanisms intended to protect a particular
federal statutory right. Thus, as the Third Circuit acknowl-
edged, § 1985(3) may provide under those circumstances a
private remedy where Congress, as part of the substantive

15

B. Title VII Establishes an Exclusive Comprehensive
Scheme for Enforcing the Rights Created by That
Title.

In concluding that Title VII rights could be en-
forced through 42 U.S.C. § 1985(38), the Court of
Appeals gave scant attention to the remedies pro-
vided by Title VII itself. It spoke broadly about sex
discrimination and “equal privileges and immunities
under the laws” (Pet. App. 16a-18a, 29a-36a), but
completely overlooked this Court’s recent decision in
Brown v. GSA, 425 U.S. 820 (1976), which strongly
implied that the remedial scheme of Title VII was
the exclusive means for redressing Title VII viola-
tions.’ Jd. at 829.

In Brown, the Court analyzed § 717 of the Equal
Employment Opportunity Act of 1972, 42 U.S.C.
§ 2000e-16, the component of Title VII addressed to
the rights and remedies of federal employees. Its
conclusion was that the “balance, completeness and
structural integrity” of § 717 independently com-

statute, deliberately withheld creating a private right of ac-
tion as the vehicle for enforcing the federal right. Pet. App.
28a. Compare Fair Labor Standards Act § 16(b), as amended,
29 U.S.C. § 216(b) (private right to sue under Fair Labor
Standards Act and Equal Pay Act terminates upon filing of
complaint by Secretary of Labor) with Hodgin v. Jefferson,
supra note 4, 447 F.Supp. at 808 (§ 1985(3) provides alterna-
tive remedy for violation of Equal Pay Act). See also note 20
infra.

* As we explain more fully at a later point, we distinguish
between remedies for violations of Title VII and remedies
for violations of other statutes. The limitation upon Title
VII remedies applies only to Title VII rights; preexisting
substantive rights under other statutes are not supplanted by
Title VII. See pp. 21-23 infra.

16

pelled the holding that Title VII should be the ex-
clusive method by which federal employees may se-
cure redress from employment discrimination. 7d. at
832. Had the Third Circuit applied the Brown method
of analysis to the problem of the private employee in
the case before it, the court logically would also have
had to conclude that remedies for violations of rights
created by Title VII are limited to those contained
in Title VII itself.”

Like § 717, the hallmark of Title VII’s remedial
scheme for employees in the private sector is “a
careful blend of administrative and judicial enforce-
ment powers.” Jd. at 833. Under § 717, a federal
employee first seeks administrative relief from his
employing agency and then may seek review from
the Civil Service Commission. An aggrieved federal
employee must exhaust administrative procedures be-
fore being eligible to file suit in federal court. Jd.
at 831-32. Under Title VII, an aggrieved private
employee similarly may seek relief from employment
discrimination by filing an informal complaint with
the Equal Employment Opportunity Commission.
§ 706(b), as amended, 42 U.S.C. § 2000e-5(b). The
Commission, with state and local equal employment
agencies, is given broad authority to investigate and

1° This Court employed a similar analysis to achieve a simi-
lar result earlier this Term in Int’] Bhd. of Teamsters v.
Daniel, U.S. , 99 S.Ct. 790, 801-02 (1979). The
Court there concluded that the specific and comprehensive
provisions of the Employee Retirement Income Security Act
of 1974 govern employee pension plans to the exclusion of
the more generally directed Securities Act and Securities and
Exchange Act. See also Califano v. Sanders, 430 U.S. 99, 104-
07 (1977) ; Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1978) ;
Johansen v. United States, 343 U.S. 427, 439 (1952).

17

conciliate the claimed violation of Title VII, termed
an “unlawful employment practice.” §§ 703(a), 706
(b)-(e) as amended, 42 U.S.C. §§ 2000e-2(a), 2000e-
5(b)-(e) ; Alexander v. Gardner-Denver Co., 415 U.S.
36, 44 (1974). If conciliation fails or the statutory
time allotted for conciliation has been exhausted,
either the Commission or the aggrieved party may
then file suit in federal court. § 706(f)(1), as
amended, 42 U.S.C. 2000e-5(f)(1)." The federal
court may fashion whatever relief is necessary. § 706
(g), as amended, 42 U.S.C. § 2000e-5(g). Though not
identical in every respect, both § 717 and the pro-
visions of Title VII applicable to private employees
thus provide “an integrated, multistep enforcement
procedure” * for the orderly and full consideration
of employment discrimination claims.

Title VII’s legislative history, moreover, demon-
strates that its detailed administrative/judicial en-
forcement machinery was carefully designed to bal-
ance the competing interests involved in an employ-
ment discrimination complaint. See Occidental Life
Insurance Co. v. EEOC, 482 U.S. 355, 359, 372-73
(1977). Delegation of enforcement authority to the
Commission shifts the burden of prosecution from the
individual complainant, assures employers that the
agency issuing discrimination guidelines will also be
the agency enforcing compliance, and encourages the
settlement of disputes through informal conciliation

1 An aggrieved party must also secure a “right to sue
letter” from the EEOC before initiating suit. § 706(f) (1), as
amended, 42 U.S.C. § 2000e-5 (f) (1) ; Alexander v. Gardner-

‘Denver Co., 415 U.S. 36, 47 (1974).

12 Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359
(1977).

18

rather than formal judicial proceedings. See Note,
Developments in the Law—Employment Discrimina-
tion and Title VII of the Civil Rights Act of 1964,
84 Harv. L. Rev. 1109, 1200, 1270 (1971). Creation
of jurisdictional prerequisites to an _ individual’s
right to bring suit in a federal court affords the
Commission “an opportunity to settle disputes through
conference, conciliation, and persuasion,” indisputably
the “preferred means for achieving [the] goal” of
Title VII. Alexander v. Gardner-Denver Co., supra,
415 U.S. at 44. Authorization of a private right of
action, however, allows the individual to escape the
administrative machinery if it is not working."* Oc-

13Tn a section-by-section analysis of the 1972 amendments
to Title VII, Senator Williams, the floor manager of the bill,
explained:

In providing this remedy, it is intended that recourse
to this form of remedy will be the exception and not the
rule, and that the vast majority of complaints will be
handled through the offices of the EEOC. However, as
the individual’s rights to redress are paramount under
the provisions of Title VII, it is necessary that all ave-
nues of relief be left open for quick and effective relief.

In providing for the individual right to sue in the
event that action by the Commission is unsatisfactory or
unresponsive, it is not intended that duplication of pro-
ceedings should be allowed. Therefore, in any proceeding
where the General Counsel or the Attorney General, as
the case may be, is proceeding with due diligence within
the time limits specified in this subsection, the person
aggrieved would be precluded from instituting an indi-
vidual action until such time as one of the specific condi-
tions of this subsection are not met.

SENATE COMM. ON LABOR & PUBLIC WELFARE, 92D CONG.,
2D SESS., LEGISLATIVE HISTORY OF THE EQUAL EMPLOYMENT
OPPORTUNITY ACT OF 1972, at 1772 (1972) (hereinafter 1972
LEGISLATIVE HISTORY).

19

cidental Life Insurance Co. v. EEOC, supra, 482 U.S.
at 362-66. Ultimate resort to the federal courts also
delegates the task of investigation and fact-finding
to the agency that has the specialized knowledge and
resources to do so, while insuring that the private
claimant will receive the most complete relief pos-
sible. FRIENDLY, FEDERAL JURISDICTION: A GENERAL
VIEW 76, 64 (1973); Sape & Hart, Title VII Recon-
sidered: The Equal Employment Opportunity Act of
1972, 40 Geo. WASH. L. REv. 824, 881 (1972).

Allowing a Title VII claimant immediate access
to the courts under § 1985(3) would circumvent this
“careful and thorough remedial scheme.” Brown v.
GSA, supra, 425 U.S. at 833; cf. Preiser v. Rodriguez,
411 U.S. 475, 489-90 (1978). By pleading a con-
spiracy to violate Title VII and invoking § 1985(3),
a claimant can avoid Title VII’s limitations on filing
time,"* back pay,”’ jury trial,” and punitive damages.”

1 Compare United Air Lines, Inc. v. Evans, 431 U.S. 553,
555 (1977) (Title VII charge must be filed with EEOC within
90 days), with Davis v. United States Steel Supply, 581 F.2d
335, 3837 (3d Cir. 1978) (state law determines statute of limi-
tations for actions under Civil Rights Acts).

See § 706(g), 42 U.S.C. § 2000e-5(g) (Title VII’s two
year limit on back pay).

1° Compare Cameron v. Brock, 473 F.2d 608, 609 (6th Cir.
1973) (jury trial in § 1985(3) action) with, e.g., Slack v.
Havens, 522 F.2d 1091, 1094 (9th Cir. 1975) (no jury trial
provided in Title VII suits, joining Fourth, Fifth, and Sixth
Circuits) ; Lorillard v. Pons, 434 U.S. 575, 583-85 (1978) (em-
phasizes equitable nature of Title VII suit although not de-
ciding jury trial issue).

17 See Richerson v. Jones, 551 F.2d 918, 926 (3d Cir. 1977)
(punitive damages may not. be recovered under Equal Em-
ployment Opportunity Act of 1972).

20

Yet each of these provisions, no less than Title VII’s
blend of forums, reflects a deliberate choice made by
Congress in 1964 and 1972." A §1985(8) plaintiff
might also plan to circumvent the EEOC’s notorious
backlog of cases." In so doing, however, the “crucial
administrative role” of the EEOC (cf. Brown v. GSA,
supra, 425 U.S. at 838) is clearly undermined. Con-
gress was well aware of the EEOC’s backlog in 1972,
yet it reinforced the Commission’s conciliation role

'® The backpay formula, for example, limits recovery to two
years prior to the time a charge is filed with the Commission.
§ 706(g), as amended, 42 U.S.C. § 2000e-5(¢). The two year
limit protects employers from liability extending back to the
effective date of the 1964 Act, while the calculation date from
filing a Commission charge, rather than from filing a court
action, prevents an employee from being penalized for filing
with the Commission. The compromise that created this
formula is discussed in Sape & Hart, Title VII Reconsidered:
The Equal Employment Opportunity Act of 1972, 40 GEO.
WASH. L. REV. 824, 881-82 (1972).

1” See Occidental Life Insurance Co. v. EEOC, supra note 12,
432 U.S. at 369. According to the EEOC’s Vice Chairman,
Daniel Leach, the Commission’s 1977 backlog in three model
offices alone amounted to 10,300 cases. Leach, Title VII of the
Civil Rights Act and the EEOC: An Agency in the Midst of
Change, 29 MERCER L. REV. 661, 669 n.386 (1978). This prob-
lem is being alleviated by the institution of the Commission’s
new streamlined procedures that has resulte? in an 11% re-
duction in backlog of three model offices within 14 weeks. Id.
at 669 n.36. In view of the geometric increase in the number
of private civil rights cases filed in federal district courts
over recent years, and the potential litigation that could
follow the Third Circuit’s decision, the backlog of the district
courts could exceed that of the EEOC’s. See FRIENDLY, FED-
ERAL JURISDICTION : A GENERAL VIEW 16, 17, 75 & n.4 (1973).

21

with substantial additional enforcement powers.” Oc-
cidental Life Insurance Co. v. EEOC, supra, 432 U.S.
at 369-70; see 1971-1972 Annual Survey of Labor Re-
lations Law, 13 B.C. INpbus. & Com. L. Rev. 1347,
1366-67 (1972). The threat to Title VII’s remedial
scheme implicit in sanctioning independent enforce-
ment of Title VII rights led the Fourth Circuit to re-
ject the position embraced here by the Third. See
Doski v. M. Goldseker Co., 539 F.2d 1326, 1334 (4th
Cir. 1976). The Third Circuit’s position, antithetical
to this Court’s holding in Brown v. GSA, now merits
rejection by this Court.

A holding that enforcement of Title VII rights is
limited to the remedies found in Title VII would not
conflict with the clear Congressional intent that other
protections against employment discrimination were
not to be supplanted by enactment of Title VII. See
Alexander v. Gardner-Denver Co., supra, 415. U.S.
at 48-49; Johnson v. Railway Express Agency, Inc.,
421 U.S. 454, 459 (1975) ; International Union of Elec-
trical Workers v. Robbins & Myers, Inc., 429 U.S.
229, 236 (1976). The same conduct may violate an
employee’s rights under Title VII, under 42 U.S.C.
§ 1981, and under a collective bargaining agreement.
In that case, the employee’s claim stems from three
independent sources of federal substantive law, each
of which contemplates its own remedies without ex-
clusion of the others. See Alexander v. Gardner-

20 While the pendency of EEOC-initiated Title VII litigation
on behalf of an aggrieved individual is intended to preclude
a parallel Title VII suit by that individual (see note 13 supra),
the individual could circumvent that limitation if dissatisfied
with the progress of the litigation by initiating a separate
§ 1985(3) suit, perhaps even in another district court.

22

Denver Co., supra, 415 U.S. at 49-50; Johnson v.
Railway Express Agency, supra, 421 U.S. at 459;
International Union of Electrical Workers v. Robbins
& Myers, Inc., supra. Before a statute other than
Title VII can be used to remedy claims also arising
under Title VII, a right with an independent statu-
tory source must be found. Section 1985(3) is not
such a statute since it creates no substantive rights;
it is purely remedial in that it enforces rights created
somewhere else.” It does not, in itself prohibit private
employment discrimination, or retaliation against em-
ployees who opposed such discrimination.

Accordingly, Novotny would have no possible claim
under § 1985(3) were it not for the fact that Title
VII prohibits discrimination in employment based on
sex, and protects employees who oppose such dis-
crimination against retaliatory action by their em-
ployers. See Doski v. Goldseker Co., supra, 539
F.2d at 1334. However Title VII not only creates
these rights and protections, but also provides a com-
prehensive “unitary” remedial scheme for their en-

21 See Pet. App. 26a-27a; Cohen v. Illinois Inst. of Tech-
nology, 524 F.2d 818, 828 (7th Cir. 1975), cert. denied, 425
U.S. 943 (1976) (Stevens, J.) ; Bellamy v. Mason’s Stores, Inc.,
508 F.2d 504, 507 (4th Cir. 1974) ; McLellan v. Mississippi
Power & Light Co., 545 F.2d 919, 927 (5th Cir. 1977) (en
banc), Note, The Scope of Section 1985(3) Since Griffin v.
Breckenridge, 45 GEO. WASH. L. REV. 239, 245-51 (1977) ;
Note, Federal Power to Regulate Private Discrimination: The
Revival of the Enforcement Clauses of the Reconstruction Era
Amendments, 74 CoLuM. L. REv. 449, 498 (1974). Contra,
Action v. Gannon, 450 F.2d 1227, 1235 (8th Cir. 1971) (en
banc); Comment, Private Conspiracies to Violate Civil
Rights: McLellan v. Mississippi Power & Light Co., 90 Harv.
L. REV. 1721, 1724-27 (1977).

23

forcement.” The exclusivity of such a remedial scheme
for Title VII rights is not inconsistent with the
preservation of other pre-1964 substantive statutes
aimed at eliminating employment discrimination.

The fact that the plaintiff, Novotny, would not
have had a §1985(38) claim prior to 1964 also re-
futes the Court of Appeals’ argument that “if rights
protected by Title VII are to be excluded from the
scope of § 1985(8), such result must flow from the
fact that Title VII worked a partial repeal of § 1985

-(3)....” Pet. App. 38a. The issue is not one of

repeal of § 1985(3), but one of its applicability to a
comprehensive remedial scheme established to enforce
subsequently enacted federal rights.

II. THE ALLEGATION OF A CONSPIRACY AMONG
THE OFFICERS AND DIRECTORS OF A SINGLE
CORPORATION ACTING ON BEHALF OF THE
CORPORATION DOES NOT SATISFY THE “TWO
OR MORE PERSONS” ELEMENT OF 42 U.S.C.
§ 1985(3).

The Third Circuit’s holding that Title VII rights
may be redressed under 42 U.S.C. § 1985(3) was
premised on its equally novel conclusion that a cor-
poration and its officers and directors, acting within
the scope of their employment, constitute more than
one person for the purpose of counting conspirators
in a civil action. Pet. App. 50a-55a. In so concluding,
the Third Circuit flouted a fundamental principle of
corporate law: that when several individuals are
“consolidated and united into a corporation, they and

their successors are then considered as one person in

* See 1972 LEGISLATIVE HISTORY, supra note 18, at 1512
(remarks of Senator Javits).

24

law... .”’ 2 BLACKSTONE, COMMENTARIES ch. 18,
at 468 (Tucker ed. 1803) ; see Trustees of Dartmouth
College v. Woodward, 17 U.S. (4 Wheat.) 518, 636
(1819). The concept that the individuals who com-
pose a corporation constitute but a single legal person
has, accordingly, been recognized by every circuit but
the Third as precluding a finding of conspiracy when
the only actors are a corporation’s officers and di-
rectors.”

The common rationale in these and similar civil
conspiracy cases, whether arising under § 1985(3),”*

28 See, e.g., Walker v. Providence Journal Co., 493 F.2d 82,
87 (1st Cir. 1974) ; Girard v. 94th St. and Fifth Ave. Corp.,
530 F.2d 66, 70-71 (2d Cir.), cert. denied, 425 U.S. 974
(1976) ; Greenville Publishing Co. v. Daily Reflector, Inc.,
496 F.2d 391, 399 (4th Cir. 1974) ; Nelson Radio & Supply Co.
v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952), cert.
denied, 345 U.S. 925 (1953) ; Fallis v. Dunbar, 532 F.2d 1061
(6th Cir. 1976) (per curiam) ; Dombrowski v. Dowling, 459
F.2d 190, 196 (7th Cir. 1972) (Stevens, J.) ; Baker v. Stuart
Broadcasting Co., 505 F.2d 181, 183 (8th Cir. 1974) ; Joseph
E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd.,
416 F.2d 71, 82-83 (9th Cir. 1969), cert. denied, 396 U.S. 1062
(1970) ; Zelinger v. Uvalde Rock Asphalt Co., 316 F.2d 47, 52
(10th Cir. 1963); Poller v. Columbia Broadcasting System,
Inc., 284 F.2d 599, 603 (D.C. Cir. 1960), rev’d on other
grounds, 368 U.S. 464 (1962).

** See, e.g., Girard v. 94th St. & Fifth Ave. Corp., supra
note 23, 530 F.2d at 70-71; Bellamy v. Mason’s Stores, Inc.,
508 F.2d 504 (4th Cir. 1974) (Boreman, J., concurring) ;
Chambliss v. Foote, 421 F. Supp. 12, 15 (E.D. La. 1976),
aff'd per curiam, 562 F.2d 1015 (5th Cir. 1977), cert. denied,
439 U.S. ——, 99 S. Ct. 127 (1978) ; Jones v. Tennessee East-
man Co., 397 F. Supp. 815, 816 (E.D. Tenn. 1974), aff’d mem.,
519 F.2d 1402 (6th Cir. 1975); Dombrowski v. Dowling,

a —

25

§ 1 of the Sherman Act,” or other contexts,” is that
because a corporation can act only through its officers

supra note 23, 459 F.2d at 196; Baker v. Stuart Broadcasting,
supra note 23, 505 F.2d at 183. Accord, Comment, Private Con-
spiracies to Violate Civil Rights: McLellan v., Mississippi
Power & Light Co., 90 Harv. L. REv. 1721, 1723 n.15 (1977).

2° See, e.g., Walker v. Providence Journal Co., supra note 23,
493 F.2d at 87; Person v. N.Y. Post Corp., 427 F. Supp. 1297,
1307 (E.D.N.Y.), aff'd mem., 573 F.2d 1294 (2d Cir. 1977);
Greenville Publishing Co. v. Daily Reflector, Inc., swpra note
23, 496 F.2d at 399; H.&B. Equip. Co. v. Int’! Harvester Co.,
577 F.2d 239, 244 (5th Cir. 1978); Tamaron Distrib. Corp.
v. Weiner, 418 F.2d 137, 139 (7th Cir. 1969) ; Morton Bldgs.
of Neb., Inc. v. Morton Bldgs., Inc., 531 F.2d 910, 916-17 (8th
Cir. 1976); Jos. E. Seagram & Sons, Inc. v. Hawaiian Oke
& Liquors, Ltd., supra note 23, 416 F.2d at 82-83; Poller v.
Columbia Broadcasting System, Inc., supra note 23, 284 F.2d
at 603.

The Fifth Circuit’s decision in Nelson Radio & Supply Co.
v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952), cert.
denied, 345 U.S. 925 (1953), is frequently cited as the foun-
tainhead of this rule not just for Sherman Act § 1 cases but
for other civil conspiracies. Pet. App. 52a n.117. But the fact
is that cases antedating Nelson Radio adhered to the rule.
See Arthur v. Kraft-Phenix Cheese Corp., 26 F. Supp. 824,
829-30 (D. Md. 1937) ; Neumann v. Bastian-Blessing Co., 70
F. Supp. 447, 449-50 (N.D. Ill. 1947). The Third Circuit
initially followed Nelson Radio in Goldlawr, Inc. v. Shubert,
276 F.2d 614, 617 (3d Cir. 1960), but then declined to approve
or disapprove it in Johnston v. Baker, 445 F.2d 424, 427 (3d
Cir. 1971), and rejected it in the instant case. Most commen-
tators, however, approve the Nelson Radio rule. See, e.g., Note,
Intra-Enterprise Conspiracy Under Section 1 of the Sherman
Act: A Suggested Standard, 75 Micu. L. REv. 717 (1977);
Willis & Pitofsky, Antitrust Consequences of Using Corporate
Subsidiaries, 48 N.Y.U.L. REv. 20, 24 n.15 (1968).

26 See, e.g., Dorsey v. Chesapeake & O. Ry., 476 F.2d 243,
245-46 (4th Cir. 1973) (per curiam); Pearson v. Youngs-

26

and directors—in effect, its agents—a conspiracy be-
tween the corporation and its officials is tantamount
to the corporation conspiring with itself.*’ Only the
Third Circuit has chosen to depart from this well-
settled principle of civil conspiracy law.

To support its holding, the Court of Appeals argued
that counting corporate officers and directors as sepa-
rate persons in a conspiracy action is necessary to
avoid immunizing their wrongful conduct. Pet. App.
5la. In particular, the court hypothesized that in-

town Sheet & Tube Co., 332 F.2d 439, 442 (7th Cir.), cert.
denied, 379 U.S. 914 (1964); Zelinger v. Uvalde Rock As-
phalt Co., supra note 28, 316 F.2d at 52.

*7In reaching its decision, the Court of Appeals disclaimed
any need to pass on the question of whether “a corporation
cannot conspire with itself.” Pet. App. 52a. The court took
this position by construing the § 1985(3) claim in Novotny’s
complaint as directed against only the individual defendants,
not the corporation. bid. In our view, this is a myopic way
of looking at this case. Although the complaint does not spe-
cifically name the corporation as a co-conspirator, the essence
of Novotny’s § 1985(3) claim, as reflected in paragraph 33
of the complaint, is that the corporation, through the action
of its board of directors and officers, terminated Novotny’s
employment. Pet. App. 83a. Furthermore, the rule of con-
spiracy law to be applied is the same whether or not the
corporation is named. Just as a single corporation cannot
conspire with itself, or with its officers and directors, the
officers and directors acting on its behalf cannot legally be
contemplated as conspiring with each other. See, e.g., Zelinger
v. Uvalde Rock Asphalt Co., supra note 23, 316 F.2d at 52;
Poller v. Columbia Broadcasting System, Inc., supra note 23,
284 F.2d at 603; Koehring Co. v. Nat’l Automatic Tool Co.,
257 F. Supp. 282, 290 n.6 (S.D. Ind. 1966), aff’d per curiam,
885 F.2d 414 (7th Cir. 1967).

27

dividuals agreeing to harass blacks who register to
vote could escape liability under § 1985(3) simply
by incorporating. Jd. at 5la-52a. To reach this type
of conduct, however, it is necessary only to apply
and not to discard the traditional rule of civil con-
spiracy. As pointed out by Judge (now Mr. Justice)
Stevens in his Dombrowski opinion:

Agents of the Klan certainly could not carry out
acts of violence with impunity simply because
they were acting under orders from the Grand
Dragon.

Dombrowski v. Dowling, supra, 459 F.2d at 196. That
is because when a corporation is a mere instru-
mentality formed to achieve a forbidden result, lower
federal courts have recognized an exception to the
traditional rule. See, e.g., Cole v. University of Hart-
ford, 391 F. Supp. 888, 893 & n.9 (D. Conn. 1975) ;
Beacon Fruit & Produce Co. v. H. Harris & Co., 152
F., Supp. 702, 704 (D. Mass. 1957). A second ecep-
tion arises when the acting officers and directors have

- an independent personal stake in the object of the

conspiracy. See, e.g., Johnston v. Baker, 445 F.2d
424, 427 (8d Cir. 1971); Greenville Publishing Co.
v. Daily Reflector, Inc., swpra, 496 F.2d at 399 & n.
16; H.&B. Equipment Co. v. International Harvester
Co., 577 F.2d 239 (5th Cir. 1978). The type of situa-
tion feared by the Third Circuit, consequently, would
not “immunize” its wrongful actors. On the con-
trary, individuals who incorporate to escape liability
for harassing black voters would quickly find their
corporation “pierced” and themselves held individually
liable as co-conspirators. Thus, the Third Circuit un-

28

necessarily rejected the traditional rule of civil con-
spiracy.”*

*®In support of its decision, the court below relied exclu-
sively on criminal conspiracy cases that follow a different
rule from that applied in civil conspiracy cases. Pet. App.
53a-55a. It ignored the fact that this difference stems from
the different jurisprudential functions served by criminal and
civil conspiracy remedies.

The court also suggested that the traditional civil rule
was inapplicable when the claim alleged a continuing pol-
icy, rather than an isolated act of discrimination. Pet.
App. 55a n.125. In so holding, the Third Circuit relied on
dictum in Dombrowski which it believed limited the traditional
rule to “a single act of discrimination by a single business
entity ... .” 459 F.2d at 196. Dombrowski involved only a
single isolated instance of discrimination and hence did not
hold that a conspiracy would have been established if the
plaintiff in that case had alleged multiple discriminatory
acts instead of the single act actually alleged. The Second
Circuit has declined to find a conspiracy where multiple acts
by a corporation’s office and directors amount to a single
policy of discrimination. See Girard v. 94th St. & Fifth Ave.
Corp., supra note 23, 580 F.2d at 71. Only District Courts
within Pennsylvania have adhered to the notion that concerted
action by corporate officers and directors, acting within their
authority, constitutes a conspiracy when multiple, but not
single, acts of discrimination are alleged. See, e.g., Rackin
v. Univ. of Pa., 386 F. Supp. 992, 1005-06 (E.D. Pa. 1974) ;
Dupree v. Hertz Corp., 419 F. Supp. 764, 766 (E.D. Pa.
1976); Jackson v. Univ. of Pittsburgh, 405 F. Supp. 607,
612-18 (W.D. Pa. 1975). But see Johnson v. Univ. of Pitts-
burgh, 485 F. Supp. 1828, 1870 (W.D. Pa. 1977).

We submit that the existence vel non of a conspiracy has
nothing to do with the number of acts of discrimination
alleged but with the relationship among the actors. See Coley
v. M&M Mars, Inc., —— F. Supp. ——, 18 FEP Cas. 1809,
1811 (M.D. Ga. 1978). One recent district court decision re-
jected the distinction based on the number of discriminatory

29

The implications of the Third Circuit’s conspiracy
decision are far-reaching and transcend the civil
rights field. Because a corporation can act only
through its officers and directors, the effect of the
court’s decision is automatically to transform all cor-
porate violations of Title VII into violations of § 1986
(8). In view of the fact that all but a handful of
Title VII cases involve corporate employers, the im-
pact of the Third Circuit’s conspiracy holding, if
permitted to stand, will be radically to expand the
scope and complexity of virtually every Title VII
case. Certainly, there is nothing peculiar to Title
VII, which is aimed primarily at the business entity
that discriminates rather than at individual third
parties,” to justify so vastly expanded a theory of
liability. Cf. Johnson vy. Railway Express Agency,
Inc., 421 U.S. 454, 464 (1975). It therefore follows
that if concerted action by corporate officers and di-
rectors acting on behalf of the corporation satisfies

acts alleged for essentially this reason, but then adopted the
equally untenable position that all acts of discrimination by
corporate management are, in a sense, ultra vires unless it
affirmatively can be shown that the discrimination was ex-
plicitly authorized by the corporation. Scott v. Bd. of Educ.,
—— F. Supp. ——, 18 FEP Cas. 1230, 1287 (D. Md. 1977).
That theory and its implications have been widely discredited
in other contexts. See, e.g., New York Cent. & H.R.R.R. v.
United States, 212 U.S. 481, 498-94 (1909); Egan v. United
States, 187 F.2d 369, 379 (8th Cir.), cert. denied, 320 U.S. 788
(1943) ; United States v. Hilton Hotels Corp., 467 F.2d 1000,
1004-07 (9th Cir. 1972), cert. denied, 409 U.S. 1125 (1973).
Plainly, the corporate officers here were authorized to adopt
personnel hiring and firing policy, and if in doing so they
stumbled into a violation of Title VII, their act was no less an
authorized one than any other employee dismissal.

*° See 1972 LEGISLATIVE HISTORY, supra note 18, at 1512.

30

the “two or more persons” required of § 1985(3),
the rule is jeopardized in its antitrust and corporate
law contexts as well.

CONCLUSION

The judgment of the Court of Appeals for the
Third Circuit, insofar as it set aside the dismissal of
respondent’s claim under 42 U.S.C. § 1985(3), should

be reversed.
Respectfully submitted,

AVRUM M. GOLDBERG
WILLIAM R. WEISSMAN
WALD, HARKRADER & Ross
1320 Nineteenth Street, N.W.
Washington, D.C. 20036
(202) 296-2121
Of Counsel:

ROBERT E. WILLIAMS

DouGLAs 8S. MCDOWELL

_ McGuINEss & WILLIAMS
1747 Pennsylvania Avenue, N.W.
Washington, IKC. 20006
(202) 296-0333

March 1979

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2013%3A08. Public record. Not legal advice.