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

FOR ARGUMENT.

DF 7S

Supreme Court,

FILED

UL &,

MAR SO 1979

Iu the Supreme Court of the Yuite mewn |

OCTOBER TERM, 1978

eed Re

GREAT AMERICAN FEDERAL SAVINGS

& LOAN ASSOCIATION, ET AL., PETITIONERS

Vv.

JOHN R. NOVOTNY

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS AMICI CURIAE

WADE H. MCCREE, JR.

Solicitor General

Drew S. Days, III

Assistant Attorney General

LOUIS F. CLAIBORNE

Assistant to the Solicitor General

WALTER W. BARNETT

JOAN F. HARTMAN

MILDRED M. MATESICH

Attorneys

Department of Justice

Washington, D.C. 20530

IssIE L. JENKINS

Acting General Counsel

LuTZ ALEXANDER PRAGER

Assistant General Counsel

PAUL E. MIRENGOFF

Attorney

Equal Employment Opvortunity Commission

Washington, D.C. 20506

oot.

ERENT ES aa

Interest of the United States and the Equal

Employment Opportunity Commission ..........

SEE ILS LS

pS GSN

Introduction and summary ..............-.....------0+--+-

I. Section 1985(c) reaches an_ intra-

corporate conspiracy ............--...----0---++++-

II. Section 1985(c) redresses deprivations

of rights secured by Title VII ..............

III. Section 1985(c) is constitutional as ap-

plied to violations of Title VII ..............

Conclusion ...............

CITATIONS

Cases:

Adickes v. Kress & Co., 398 U.S. 144 ......

Alexander v. Gardner-Denver Co., 415

ee ee

Anderson v. United States, 417 U.S. 211..

Arnold v. Tiffany, 487 F.2d 216, cert. de-

a ee ee a...

Askew v. Bloemaker, 548 F.2d 673 ..........

Baker v. Staurt Broadcasting Co., 505

ee ee...

Brown v. GSA, 425 U.S. 820 ....................

Callanan v. United States, 364 U.S. 587..

Canavan v. Beneficial Insurance Co., 553

F.2d 860 .......

an w bd

II

Cases—Continued Page

Chastang v. Flynn & Emrich Co., 365 F.

Supp. 957, aff’d, 541 F.2d 1040 ............ 27

Clark v. Universal Builders, Inc., 501 F.2d

324, cert. denied, 419 U.S. 1070 .......... 12

Collins v. Hardyman, 341 U.S. 661 .......... 5

Conroy v. Conroy, 575 F.2d 1785 ...............- 25

Crandall v. State of Nevada, 73 U.S. (6

Wey TE seicastaicicednnnbiivionieicis 31

Curran v. Portland Superintending School

Committee, 485 F. Supp. 1068 .............. 22

Davis H. Elliot Co. v. Caribbean Utilities

tig ee Fe acetic pnectticcanscomne 12

Dombrowski v. Dowling, 459 F.2d 190...... 10

Doski v. Goldseker Co., 5389 F.2d 1326...... 22

Edwards v. California, 314 U.S. 160 ........ 31

Eisner v. Macomber, 252 U.S. 189 .......... 10

Ferguson v. Omnimedia, Inc., 469 F.2d

} ERNNRENDWY Besa RAINE a ce” MONG Ne Cerone 14-15

Fong Foo v. United States, 369 U.S. 141.. 14

Girard v. 94th St. & Fifth Ave. Corp.,

530 F.2d 66, cert. denied, 425 U.S. 974.. 10

Glasson v. City of Louisville, 518 F.2d

899, cert. denied, 423 U.S. 980 ~............. 14

Greenville Publishing Co. v. Daily Reflec-

bor, Ft., AOE FBG FOV ecescsccinciccsocstiesiene 16

Griffin v. Breckenridge, 463 U.S. 88....3, 6, 8, 13

Griggs v. Duke Power Co., 401 U.S. 424.. 21

Guinn v. United States, 238 U.S. 347 ...... 6

H. Kessler & Co. v. EEOC, 472 F.2d 1147,

cert. denied, 412 U.S. 989 ....0020... 28

Hampton v. City of Chicago, 484 F.2d

602, cert. denied, 415 U.S. 917 -220000000.... 14

Hatley v. American Quarter Horse Asso-

CURDIOM, BEE FB GO crccsicccntscecsctisccconses 17

IIt

Cases—Continued Page

Johnson v. Railway Express Agency, Inc.,

ee * eee 2, 9, 25, 26, 28, 29

Johnston v. Baker, 445 F.2d 424 .............. 15

Jones v. Mayer Co., 392 U.S. 409 .............. 25

Life Insurance Co. of North America v.

Reichardt, No. 75-3031 (9th Cir., Jan.

EE IRR ARG ae es SR aac ean 25

Logan v. United States, 144 U.S. 268 ...... 22

Lopez v. Arrowhead Ranches, 523 F.2d

TE cide adh osetia aA endleabadionteeedmaidaiclacneion 22

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

Marlowe v. Fisher Body, 489 F.2d 1057.. 22

McCandless v. Furlaud, 296 U.S. 140...... 12

McLellan v. Mississippi Power & Light

Company, 545 F.2d 919 ...................200000. 21, 22

McDonald v. Santa Fe Trail Transp. Co.,

NE I ease elcid Bienes sniadeinens 2, 25

Means v. Wilson, 522 F.2d 833, cert. de-

I re re een dene licsenincbcclecivonemres 22

Monell v. New York City Dept. of Social

Services, 486: U.S. 658 ....................e0ceeee- 13

Nelson Radio & Supply Co. v. Motorola,

Inc., 200 F.2d 911, cert. denied, 345

EAM IIR © Scsligsicsuprdhlateacpeumiieciontitetadsecbashinn 16

Nye & Nissen v. United States, 336 U.S.

I asta abarssnebendavtessscaeaRinetanantacnuseioces 14

Passenger Cases, 48 U.S. (7 How.) 283.... 31

Phillips v. International Ass’n of Bridge,

S. & O. Iron Workers, 556 F.2d 939 .... 21

Quarles and Butler, In re, 158 U.S. 582.. 22

Runyon v. McCrary, 427 U.S. 160 .......... 2, 25, 26

Santa Clara Pueblo v. Martinez, 436 U.S.

EERE i NER RSA Oe ae eC COR II 26

Shapiro v. Thompson, 394 U.S. 618 .......... 31

Slack v. Havens, 522 F.2d 1091 ................ 12-13

IV

Cases—Continued Page

Sullivan v. Little Hunting Park, 396 U.S.

IIIT coscies’ haneaalsaieedtalianideacasanaskeentiaam antigen 25

Tillman v. Wheaton-Haven Recreation As-

sociation, 517 F.2d 2141 -.......2.....2.cc..0--- 12

Tomkins v. Public Service Electric & Gas

ig TA te I ecirictheictitecrsnnetusones 13

Trustees of Dartmouth College v. Wood-

ward, 17 U.S. (4 Wheat.) 518 .............. 10

United Klans of America, Inc. v. McGov-

C0 SER FH. BU. FD cciccittcicersninnvecinstcnes 17

United States v. Carroll, 144 F. Supp.

SOI sees olosiasschceccnndbncednatbnipiniebassealitiasiesantesniels 17

United States v. Classic, 318 U.S. 299...... 6, 32

United States v. Guest, 383 U.S. 745........ 30, 31

United States v. Harris, 106 U.S. 629...... 5

United States v. Johnson, 390 U.S. 568... 25

United States v. Mosley, 238 U.S. 383..6, 9, 20, 32

United States v. Northside Realty Asso-

ciates, Inc., 474 F.2d 1164 ~..........2....... 13

United States v. Pelzer Realty Co., 587

FF e, . siinssccentciasttentatceniealainaiaiiaenaail 13

United States v. Price, 383 U.S. 787 ........ 20, 31

United States v. Sampson, 371 U.S. 765 .... 14

United States v. Waddell, 112 U.S. 76 .... 22

United States v. Wise, 370 U.S. 405 ........ 12

Yarbrough, Ex parte, 110 U.S. 651 ........ 32

Young v. International Telephone & Tele-

graph Co., 488 F.2d 787 .......c..ccecccceoseese 28

Constitution and statutes:

United States Constitution:

Article I, Commerce Clause....2, 9, 30, 31, 32

Article IV:

Privileges and Immunities

Clause ... 32, 33

Vv

Constitution and statutes—Continued Page

Republican Form of Government

NE Tasca tutdtacchaseebinies <— 33

Thirteenth Amendment .................. 20, 30, 33

Fourteenth Amendment .......... 24, 30, 32, 33

Fifteenth Amendment ...................... 33

Act of April 20, 1871 (Ku Klux Act), ch.

22, Section 2, 17 Stat. 13 .......... 5, 8, 10, 13, 17,

22-23

Act of March 4, 1909, ch. 321, 35 Stat.

I ii ic inl eshianitcn tiaplanaiasavomsees 5, 18

Civil Rights Act of 1866, ch. 31, 14 Stat.

isa ae ls in sho abladadiecaaiacigieet 19

Civil Rights Act of 1964, Title VII, 42

ne I i cca citi ceepeiniais 3

Section 704(a), 42 U.S.C. 2000e-

BU se Uecshicalearscbamcivenintbetnaloaneoninaine 4,5

Section 705(g) (3), 42 U.S.C. 2000e-

ed en en 28

Section 705(g) (4), 42 U.S.C. 2000e-

UE | iti leieiceesnetemininneenesoaneni 28

Section 706, 42 U.S.C. 2000e-5 .......... 2,3

Section 706(b), 42 U.S.C. 2000e-

gh OBESE EER eserves eteel NE ER 28

Section 706(f) (1), 42 U.S.C. 2000e-

NITE Ys sh:stidbeledibantigansbeieeciaebbakdistecsue 28

Section 707, 42 U.S.C. 2000e-6 .......... 2

Fair Housing Act, 42 U.S.C. 3613 —........... 13

Sherman Anti-Trust Act. ch. 647, Section

RI CI oo acsiccicchncsvecsveesoncsecdacosbncs 16

eg asias henshs nce saticonabiseensionossuruconse 13

oi dclaaincaedbapensonods 13

SE ee | ec 6, 18, 24, 30, 31, 32

i hl rdeenanndeniananlcsieduns 6

VI

Constitution and statutes—Continued Page

MF Ie EID cc siteaiicerhsinensergenlateicstansnsisbccoashssish 6

ee I ciettelctacikniacecsmcicionicns 9, 11, 12, 26

RES Geel eerctceele ete Lm Reo SOD 12, 26

Be ahs eke ckcaneecicbileseedis 13, 26

ee arctic sa pisstceensiantieialenneviovnnind passim

Miscellaneous:

Comment, Intra-Enterprise Conspiracy

Under the Sherman Act, 63 Yale L. J.

ee . NA ee ee ae 16

Cong. Globe, 42d Cong., 1st Sess. (1871):

RE PRRs Opener nr er Oe 23

eh eat eda er 23

SE | REITER AP Seca seae EA apo ae 23

GET O Seeae Se e e 23

J Cece Ps oc 23

Mgt Sg REEDS een ee Oe 23

I MI ote eal hadictedaieciceitnersitiaaabdedacuiien 24

118 Cong. Rec. (1972):

RR SSR ip ed ec CR 27

ie STE iaccdaticcenecticintibncieanianies 26-27

Se, , SRC ne ROR nee Taam 27

W. Fletcher, Cyclopedia of the Law of

Private Corporations (rev. perm. ed.

SID hes caccicccuhiesnidiasaahineerasttatiniictslebsnmghcnione 12

H.R. Rep. No. 92-238, 92d Cong., 1st Sess.

UD j aaiciaindiciacrtss putpiindnbcteenlstabnes tactesablaaa te 26

Note, Developments in the Law—Criminal

Conspiracy, 72 Harv. L. Rev. 920

PRI serpisssccccintnnrnsebonataceemantrmameieees 15

VII

Miscellaneous—Continued Page

Note, Intracorporate Conspiracies Under

42 U.S.C. § 1985(c), 92 Harv. L. Rev.

RD. CRIED: alnseeisnedtelancasanasiniciiceousnins 16

President’s Reorganization Plan No. 1 of

1978, 43 Fed. Reg. 19807 (1978) ........ 2

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

OO clad ticalisioasinc:sainitavontinianaiankabsiphiicthedahaiieas 26

L. Sullivan, Handbook of the Law of Anti-

RP COTTE Sisiocceticsanceeaaeanen 16

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-753

GREAT AMERICAN FEDERAL SAVINGS

& LOAN ASSOCIATION, ET AL., PETITIONERS

Vv.

JOHN R. NOVOTNY

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS AMICI CURIAE

QUESTIONS PRESENTED

1. Whether officers and directors of a corporation,

acting on behalf of the company, can form a con-

spiracy for the purposes of 42 U.S.C. 1985(c).

2. Whether a violation of Title VII of the Civil

Rights Act of 1964 is a deprivation of “equal privi-

leges and immunities” within Section 1985(c).

(1)

2

3. Whether the Commerce Clause may be invoked

as a constitutional predicate for Section 1985(c) in-

sofar as it reaches Title VII rights.

INTEREST OF THE UNITED STATES AND THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Both the Attorney General and the Equal Employ-

ment Opportunity Commission are empowered to bring

civil actions to enforce Title VII of the Civil Rights

Act of 1964 and the Commission, additionally, has

substantial administrative responsibilities for dealing

with charges of employment discrimination. 42 U.S.C.

2000e-5, 2000e-6; President’s Reorganization Plan No.

1 of 1978, 43 Fed. Reg. 19807 (1978). Accordingly,

the Department of Justice and the Commission have

an interest in any enforcement mechanisms that con-

tribute to achieving the goals of Title VII. For that

reason, among others, we participated as amicus

curiae in this Court in Johnson v. Railway Express

Agency, Inc., 421 U.S. 454 (1975), and Alexander v.

Gardner-Denver Co., 415 U.S. 386 (1974), which con-

sidered in other contexts the question whether Title

VII is the exclusive remedy for employment discrimi- _

nation.

The national commitment to eliminate discrimina-

tion in public life is an independent ground for our

participation in cases involving federal civil rights

legislation. L.g., Runyon v. McCrary, 427 U.S. 160

(1976); McDonald v. Santa Fe Trail Transp. Co.,

427 U.S. 273 (1976). That consideration prompted

us to address the meaning of Section 1985(c) as

3

amicus curiae in Griffin v. Breckenridge, 403 U.S. 88

(1971). It seems appropriate that we speak again as

that statute returns before the Court.

STATEMENT

Respondent, John R. Novotny, brought this suit

against his former employer, Great American Federal

Savings and Loan Association (GAF), and nine of its

present or former directors and officers. Until dis-

charged, respondent was secretary and a director of

the corporation. Seeking monetary and injunctive

relief, he alleged violations of the Civil Rights Act of

1964, 42 U.S.C. 2000e et seq., and 42 U.S.C. 1985(c)

(Pet. App. 77a).

The complaint alleges that, in January 1975, after

a female GAF employee had been discharged for pro-

testing the company’s promotion policies and after

respondent had spoken out against these allegedly

discriminatory policies at a meeting of the board of

directors, his fellow board members voted to fire him

as secretary and as a GAF employee (Pet. App. 80a-

81a {|| 19-24). His own discharge, he stated, was the

result of “an agreement and conspiracy by and among

the individual defendants to deprive Novotny of and

to penalize him for the exercise of his constitutional

‘This suit was initiated only after respondent had ex-

hausted his administrative remedies under Title VII. Within

a week of his discharge, he had filed a charge with the Equal

Employment Opportunity Commission. Almost two years

later, the Commission issued a “right to sue” letter under

42 U.S.C. 2000e-5. Only then did respondent resort to court

proceedings.

4

rights to freedom of expression and association” be-

cause of his “support for equal employment oppor-

tunity for women within the GAF organization” (Pet.

App. 81a-82a [| 25-26).

According to the complaint, respondent’s discharge

was one step in a conspiracy against female employ-

ees, the defendants having “intentionally and de-

liberately embarked upon and pursued a course of

conduct the effect of which was to deny to female em-

ployees equal employment opportunity * * * for pro-

motion and advancement” (Pet. App. 79a {| 16, 81a-

82a 1] 25-27).

The district court granted petitioners’ motion to

dismiss (Pet. App. 76a). As to the claim under Sec-

tion 1985(c), the court held that officers and directors

of a single corporation are legally incapable of form-

ing a conspiracy (Pet. App. 73a). Respondent’s Title

VII claim was also dismissed, on the ground that

Section 704(a) of Title VII, 42 U.S.C. 2000e-3(a),

reaches retaliatory discharges only where the severed

employee has made a charge or testified in a formal

proceeding (Pet. App. 74a).

The court of appeals, en banc, unanimously re-

versed. That court concluded that intra-corporate con-

spiracies are not beyond the reach of Section 1985(c)

(Pet. App. 55a). The court went on to hold that con-

spiracies motivated by invidious discriminatory ani-

mus against women are actionable under Section

1985(c) and that respondent as a male injured in

the course of such a conspiracy has standing to sue

5

(Pet. App. 18a, 21a).* The argument. that Section

1985(c) was not intended to embrace rights created

by Title VII was rejected (Pet. App. 36a, 40a). So

was the suggestion that constitutional obstacles pre-

vented that result (Pet. App. 49a).

With respect to respondent’s cause of action under

Section 704(a) of Title VII, the court of appeals held,

contrary to petitioners’ argument, that Congress did

not intend to restrict protection to participation in

formal EEOC proceedings only (Pet. App. 59a).’

ARGUMENT

INTRODUCTION AND SUMMARY

1. A century ago, Congress subjected to civil and

criminal liability those who “conspire * * * for the

purpose of depriving * * * any person or class of per-

sons * * * of equal privileges and immunities under

the laws.” Act of April 20, 1871, ch. 22, Section 2, 17

Stat. 138 (Ku Klux Act). Not long afterwards, this

Court struck down the criminal portion of the stat-

ute, United States v. Harris, 106 U.S. 629 (1882),

and Congress repealed that provision. Act of March

4, 1909, ch. 821, 35 Stat. 1088, 1154. The civil rem-

edy survived, presumptively invalid and unused, until

it was put out of harm’s way in Collins v. Hardy-

man, 341 U.S. 651 (1951). Then, some eight years

“ These latter two rulings were not challenged by the peti-

tion for certiorari.

* This ruling, also, was not challenged by the petition for

certiorari and, accordingly, is not before this Court.

6

ago, the Court in Griffin v. Breckenridge, 403 U.S. 88

(1971), removed the shackles that had disabled Sec-

tion 1985(c) from performing a useful role in the

continuing effort to secure equal rights. That appar-

ent liberation has proved very limited, however. The

provision has not fared well in the lower courts, many

obstacles having been found to restrict its application.

At length, the Court of Appeals for the Third Cir-

cuit, sitting en banc, has unanimously ruled that, in

aggravated circumstances, Section 1985(c) vindicates

the right to equal employment opportunities secured

by Title VII of the Civil Rights Act of 1964 and that

case is now here. Once again, the Court is called upon

to decide the fate of the statute.

The basic question before the Court is whether Sec-

tion 1985(c) shall be relegated to those now happily

infrequent instances in which group violence, typically

outside the area of ordinary business relations, threat-

ens the enjoyment of fundamental rights. Since most

such cases are more appropriately dealt with under

criminal civil rights statutes, old and new (¢.g., 18

U.S.C. 241, 242, 245), such a construction of Section

1985(¢c) would give it a very small part indeed in the

unfinished work of combating discrimination. It

would be ironic, moreover, to so confine what is today

a wholly civil remedial statute when its criminal

analogs reach nonviolent interference with civil rights.

E.g., Guinn v. United States, 238 U.S. 347 (1915) ;

United States v. Mosley, 238 U.S. 883 (1915) ; United

States v. Classic, 313 U.S. 299 (1941); Anderson v.

United States, 417 U.S. 211 (1974). Today, the

promise of Section 1985(c) is fulfilled only if it

7

reaches concerted, but non-violent, discrimination in

employment, housing and access to services.

On the other hand, we do not suggest that Section

1985(c) is a cure for all ills. On the contrary, this

Court has precisely limited the thrust of the provision

by insisting that it be reserved for aggravated cases

in which a number of like-minded individuals, sharing

a class-based invidiously discriminatory animus, join

in a scheme to deprive citizens of their federally

secured rights. Those conditions assure that the stat-

ute will not unduly intrude on the conciliation process.

But, in our submission, there is no warrant for erect-

ing additional barriers to the invocation of Section

1985(c). Construed consistently with its language,

the provision will serve a discrete but important func-

tion both as remedial tool and deterrent.

2. The burden of our brief is to defend the decision

of the court of appeals against the several challenges

mounted by petitioners. We follow petitioners’ se-

quence in dealing with their arguments.

(a) Initially, the proposition is advanced that Sec-

tion 1985(c) does not reach officers or agents of the

same corporation who join in fashioning or imple-

menting a discriminatory employment policy, so long

as they are acting on behalf of the company. We

examine that supposed rule and show that it has no

basis in corporation law, or the law of agency or tort,

or in general conspiracy law. When agents of a firm,

whether or not incorporated, act in such a way as to

render themselves personally liable, there is no reason

8

in law or logic why they should not be deemed co-

conspirators when they join together to achieve that

unlawful end.

Looking more particularly to Section 1985(c), we

find no occasion to make a special exception. On the

contrary, that statute, originally written as a criminal

provision, was, in our view, designed to attach in-

dividual responsibility to conspirators engaged in con-

certed discriminatory conduct, whether or not the

participants were closely allied and furthering the

interest of their principal. We note, however, that

construing Section 1985(c) to reach intracorporate

conspiracies does not implicate every company deci-

sion. Under the Court’s holding in Griffin v. Brecken-

ridge, supra, Section 1985(c) is applicable only when

several officers or agents share a class-based invid-

ously discriminatory animus and join in a scheme to

deprive employees or applicants of their Title VII

or other federal rights.

(b) We next address petitioners’ contention that

Section 1985(c) in no event reaches violations of

Title VII. Looking to the text and the legislative

history of the Ku Klux Act, we conclude that “privi-

leges and immunities under the laws” plainly em-

braces rights declared by federal statutes. The object

of Section 1985(c) was to provide an additional

remedy for concerted action designed to prevent a

class of citizens from enjoying their federal rights,

whether declared by the Constitution itself or by an

Act of Congress.

The suggestion that violations of Title VII, in par-

ticular, ought to be exempted from the coverage of

9

Section 1985(c) is quickly disposed of. In our view,

this is a mere rehearsal of the argument advanced

with respect to the applicability of Section 1981 and

firmly rejected by this Court in Johnson v. Railway

Express Agency, Inc., 421 U.S. 454 (1975). Here, as

there, recognizing an alternative remedy. does not

disrupt the scheme of Title VII, but, on the contrary,

merely contributes to the achievement of the goal of

eliminating employment discrimination.

(c) Finally, it is said that Section 198)(c) is not

premised on the Commerce Clause and therefore can-

not vindicate rights created under that source of con-

gressional power. Although couched in constitutional

terms, the argument is really one of statutory con-

struction. The full answer, we submit, is that the

42d Congress—whatever its views as to the clause of

the Constitution appropriately invoked—plainly meant

to “put forth all its powers” (United States v. Mosley,

238 U.S. 383, 387 (1915) ), and to protect all federal

rights, both as presently established and as they might

be declared in future legislation. Of course, as a

purely remedial provision, Section 1985(c) is avail-

able only to those whose rights have been violated

under other laws. But there is no cause to exclude

Title VII rights merely because that statute, imple-

menting the Commerce Clause, may not have been

envisaged in 1871.

10

I. SECTION 1985(c) REACHES AN INTRA-CORPO-

RATE CONSPIRACY

No doubt because it has won distinguished adher-

ents in the courts,’ petitioners set up as a first obstacle

to the applicability of Section 1985(c) the supposed

axiom of the civil law that the officers of a single cor-

poration cannot “conspire” together, at least when

they are acting on behalf of the company. We examine

that propostion, both as a generality and in the par-

ticular context of the case.

1. The corporation is one of the law’s more ex-

travagant creations, “an artificial being, invisible,

intangible, and existing only in contemplation of law,”

possessing “immortality” and “individuality.” 7rus-

tees of Dartmouth College v. Woodward, 17 U.S. (4

Wheat.) 518, 636 (1819). In some circumstances, the

consequence of incorporation is to shield from personal

liability those who act on behalf of the company. That

rule, we may assume, was left undisturbed by the

Ku Klux Act of 1871, and we are, accordingly, content

to obey usual corporate law when it requires us to

look only to the unit and to ignore the human actors.

But the law has never been so improvident as to dis-

able itself altogether from “disregarding the corpo-

rate fiction whenever that is deemed necessary to at-

tain a just result” (Hisner v. Macomber, 252 U.S. 189,

231 (Brandeis, J., dissenting) (1920)). This is such

+E.g., Dombrowski v. Dowling, 459 F.2d 190 (7th Cir.

1972) ; Girard v. 94th St. & Fifth Ave. Corp., 530 F.2d 66

(2d Cir.), cert. denied, 425 U.S. 974 (1976) ; Baker v. Stuart

Broadcasting Co., 505 F.2d 181 (8th Cir. 1974).

11

a case. The facts alleged take the matter well beyond

that sanctuary where individual conduct merges so

completely with the corporate decision as to shield

the actual wrongdoers.

It is quite right, we submit, to refuse to see a “con-

spiracy” under Section 1985/c) when the conduct

complained of would not, under ordinary rules, render

the corporate officers personally liable. Indeed, we

may accept that board members, or other officers, who

joined in a wrongful corporate decision innocently, or

even negligently, could not be deemed “conspirators”

although the corporation itself were accountable in

damages. But we cannot appreciate why officers or

directors who knowingly join in planning discrimina-

tory action ought not be answerable as co-conspirators

under Section 1985(c), just as they would be personal-

ly liable in tort or under 42 U.S.C. 1981 for like con-

duct. If the corporate veil would be pierced because

the officers, although acting for the company, have .

overstepped the line of personal immunity, the same

considerations, it seems to us, permit the court to

examine the conduct of these officers under Section

1985(c).

The dispositive inquiry, in our view, is whether the

kind of conduct condemned by Section 1985(¢) would,

as a matter of general law, subject the individual

officers to personal liability, albeit they were acting

on behalf of the company. Obviously, the rules govern-

ing vicarious responsibility will not answer the ques-

tion. Whether the act was within actual or apparent

authority may determine the liability of the corpora-

tion under the doctrine of respondeat superior. But»

12

the accountability of individual agents is not ended

merely because their principal also may be reached—

whether that principal is a municipality, an unincor-

porated employer, or a corporation.’ We must look

more particularly at the rules that govern the personal

liability of corporate officers.

It is common ground that the fiction of corporate

unity does not insulate individual officers from re-

sponsibility for criminal conduct—even when the cor-

poration itself is also answerable. F.g., United States

v. Wise, 370 U.S. 405 (1962). It is equally well-

settled that corporate officers are accountable for tor-

tious conduct, at least, intentional torts. See, e.g.,

McCandless v. Furlaud, 296 U.S. 140 (19385); Davis

H. Elliot Co. v. Caribbean Utilities Co., 513 F.2d 1176,

1182 (6th Cir. 1975); W. Fletcher, Cyclopedia of the

Law of Private Corporations, §§ 1135, 1137 (rev.

perm, ed. 1975). And, even more closely in point,

the same rule obtains for the “tort” of discrimi-

nation under other civil rights legislation. See

Tillman v. Wheaton-Haven Recreation Association,

517 F.2d 1141, 1144 (4th Cir. 1975) (42 U.S.C.

1981, 1982); Clark v. Universal Builders, Inc., 501

F.2d 824 (7th Cir.), cert. denied, 419 U.S. 1070

(1974) (42 U.S.C. 1982); Slack v. Havens, 522 F.2d

*Construing the complaint as alleging a conspiracy only

among the individual petitioners, the court of appeals did not

reach the question of the corporation's liability (Pet. App.

52a). In those circumstances, it seems premature for this

Court to consider whether the corporation itself should be

deemed a co-conspirator or liable, alternatively, under the doc-

trine of respondeat superior.

13

1091 (9th Cir. 1975) (Title VII); Tomkins v. Public

Service Electric & Gas Co., 568 F.2d 1044 (8d Cir.

1977) (Title VII) ; United States v. Northside Realty

Associates, Inc., 474 F.2d 1164 (5th Cir. 1973) (Fair

Housing Act, 42 U.S.C. 3613) ; United States v. Pelzer

Realty Co., 5387 F.2d 841 (5th Cir, 1976) (Fair

Housing Act). Cf. Monell v. New York City Dept. of

Social Services, 486 U.S. 658 (1978) (42 U.S.C.

1983).

Our case, quite plainly, is within the ambit of those

rules. Section 1985(c) only reaches conduct that was

deemed both criminal and tortious.’ By definition, to

“conspire” is to engage in deliberate and purposeful

conduct. And, at all events, this Court has expressly

restricted the reach of the provision to embrace only

conspirators whose conduct, informed by “class-based,

invidiously discriminatory animus,” is intended to

deprive the victim of a legal right. Griffin v. Brecken-

ridge, 436 U.S. 88, 102-103 (1971). Section 1985 (c)

requires mens rea of a special kind, well beyond the

state of mind sufficieat for ordinary intentional torts

and under many civil rights statutes imposing per-

sonal liability.

In sum, nothing in the law of torts or agency, or

corporation law or civil rights law, justifies a holding

*The second section of the Civil Rights Act of 1871, as

originally enacted, provided both criminal penalties and a

civil damage action for the same conspiratorial conduct.

R.S. 1980, Act of April 20, 1871, ch. 22, Section 2, 17 Stat. 13.

The criminal counterpart of Section 1985(c) was codified

separately in 1874 as R.S. 5519. It was repealed in 1909. Act

of March 4, 1909, ch. 321, 86 Stat. 1088, 1154.

14

that corporate officers acting for the company enjoy

immunity from personal liability under Section

1985(c) on the ground that their conduct “merges”

into that of the corporation. The remaining question

is whether the law of conspiracy or some other rule

peculiar to Section 1985(c) erects a special obstacle

to personal liability in these circumstances,

2. It is not immediately apparent why the law

should, on the one hand, hold co-directors of a corpora-

tion personally answerable for their own intentional

conduct on behalf of the company, and yet, on the

other, grant them personal immunity when they

conspire together to the same end, If there were such

a rule, however, we would expect to encounter it, not

only in the context of private corporations, but

wherever agents have a common master,

Except for a questionable exception under some

antitrust statutes (infra, pages 16-17), we find .no

principle that co-agents are, in law, incapable of con-

spiracy. The contrary has been generally accepted,

Thus, employees of a single municipal corporation have

been held civil conspirators under Section 1985(c).

Glasson v, City of Louisville, 518 F.2d 899 (6th Cir.),

cert. denied, 423 U.S. 980 (1975); Hampton vy, City of

Chicago, 484 F.2d 602 (7th Cir. 1973), cert. denied,

415 U.S, 917 (1974). And, under other statutes, civil

and criminal, co-officers or co-employees have likewise

been found to have conspired. 2.g., Nye & Nissen vy.

United States, 336 U.S. 6138 (1949); Fong Foo v.

United States, 369 U.S, 141 (1962); United States v.

Sampson, 871 U.S. 75 (1962); Ferguson v. Omni-

15

media, Inc., 469 F.2d 194 (1st Cir. 1972) ; Johnston v.

Baker, 445 F.2d 424 (3d Cir. 1971).

Many of the precedents just cited, it is true, involve

prosecutions under criminal statutes. The reason is

that conspiracy is primarily a criminal law concept.’

But, in our submission, the same principle governs,

whether the conspiracy is condemned in a civil or

criminal statute.

Petitioners quote a passage from this Court’s opin-

ion in Callanan vy, United States, 364 U.S, 587, 593-

594 (1961), which articulates the enhanced dangers

presented by a conspiracy (Pet. Br. 19), Although

that discussion is in a criminal context, it seems clear

like considerations lie behind every legislative decision

to outlaw conspiracies, whether by imposing criminal

or civil sanctions, Surely, it is equally true of inten-

tional torts that lend themselves to co-operative efforts

that “[c]oncerted action both increases the likelihood

that the [wrongful] object will be successfully ob-

tained and decreases the probability that the individ-

uals involved will depart from their path of [tortious

conduct].”” So, also, in the non-criminal arena,

“Tg |roup association * * * often * * * makes possible

the attainment of ends more complex than those which

one [tortfeaser] could accomplish,” And, finally, just

as among criminals “[c]ombination * * * makes more

likely the commission of crimes unrelated to the

original purpose for which the group was formed,”

' See Note, Developments in the Law—Criminal Conspiracy,

72 Harv. L. Rev. 920 (1959).

16

so here, augmented opportunities exist for unlawful

acts foreign to the original purpose of non-criminal

combinations.

In the relatively few situations in which the non-

criminal] law singles out conspiracy, it is for the same

reasons. There are no others. See Opinion of Bren-

nan, J., in Adickes v, Kress & Co., 898 U.S, 144, 221

(1970). At all events, in the context of Section

1985(¢), it is quite impossible to fashion separate

doctrines for civil and criminal liability, since, as

originally enacted, the same statute imposed both civil

and criminal sanctions against the identical con-

spiracy."

Nor is there any pretext here for invoking the

supposed antitrust exception. The holding that there

can be no intra-corporate conspiracy under Section 1

of the Sherman Act is justified, if at all," by the

legislative focus in that provision on restrictive agree-

ments between economic units, rather than individ-

uals.” Accordingly, in that special context, the re-

* See note 6, above.

*The rationale of Nelson Radio & Supply Co. v. Motorola,

Ine,, 200 F.2d 911 (5th Cir, 1952), cert. denied, 845 U.S, 925

(1958), was a departure from earlier precedent and has been

criticized by commentators (see Note, Intracorporate Con-

spiracies Under 42 U.S.C. §1985(¢), 92 Harv. L. Rev. 470,

479-482 (1978); L. Sullivan, Handbook of the Law of Anti-

trust, 828-829 (1977) ; Comment, Intra-Enterprise Conspiracy

Under the Sherman Act, 68 Yale L.J. 872, 885-887 (1954) ).

It has not been uniformly followed in the civil antitrust con-

text. See Greenville Publishing Co. v. Daily Reflector, Inc.,

496 F.2d 89. (4th Cir, 1974),

” See Note, supra, 92 Harv. L. Rev. at 480-481,

17

- quirement of at least two co-operating units for a

conspiracy has been applied in both criminal and civil

cases. See, e.g., United States v. Carroll, 144 F. Supp.

939 (S.D.N.Y. 1956). And, logically, the require-

ment obtains whether the economic units are partner-

ships or associations, rather than corporations. See

Hatley v. American Quarter Horse Association, 552

F.2d 646 (5th Cir, 1977),

That special rule, it need hardly be said, can have

no general application to the Ku Klux Act. The his-

torical setting of our provision—sufficiently rehearsed

in Breckenridge, supra, 403 U.S, at 98-102—fore-

closes any suggestion that the primary focus was on

the action of economic units, rather than groups of

individuals, It is equally clear that the prime targets

of the law did not cease to be viewed as “conspirators”

because they were acting as loyal and anonymous

agents of the “Invisible Empire,” rather than for

purely personal reasons, Nor would anyone argue,

we assume, that incorporation of the Klan in a par-

ticular area “ immunized the local members so long as

they were merely furthering “company policy.” Every

indication is that the authors of Section 1985(c)

singled out conspiracies for the classical reason that

combinations were thought to present a more serious

threat than lone operators, and that they would have

viewed the conspirators as all the more necessary to

‘The modern Ku Klux Klan has incorporated and its lead-

ership operates as a private corporation, United Klans of

America, Ine. Vv. McGovern, 453 F. Supp. 886 (N.D. Ala.

1978).

18

reach by federal law when they were closely organized

under the umbrella of a corporation, public or private.

3. What has been said sufficiently answers any

suggestion that, as a general rule, Section 1985(c)

does not notice like-minded confederates when they are

all officers of a single corporation. But petitioners

may be advancing a narrower argument: that, in

the special case of an agreement to discriminate with

respect to employment, the employer should be viewed

as unitary and internal agreements therefore beyond

the reach of Section 1985(c). The propostion requires

separate consideration.

The consequences of such a rule must be under-

stood. First, the exemption, if justifiable at all, must

include all employers, whether unincorporated asso-

ciations, partnerships, single proprietorships or cor-

porations. The “unit” concept is no sounder as ap-

plied to the officers of a corporation than to two or

more partners making a hiring or promotion decision.

Moreover, since (as already shown) the reasons for

singling out conspiracy are the same whether the sanc-

tions are civil or criminal, the rule suggested logically

would also exempt officers and agents of an employer

from liability under the criminal analog of Section

1985(c), 18 U.S.C. 241—at least when their “con-

spiracy” carried out the firm’s policy. Thus, in a back-

handed way, the result would be to make Title VII

of the Civil Rights Act of 1964 the exclusive remedy

for discrimination in private employment on grounds

other than rate—except perhaps in the rare case of

agents acting contraxy to “company” policy or the

19

- unlikely situation of several distinct employers band-

ing together to implement a common discriminatory

policy. As we demonstrate in a moment, that was not

the congressional understanding.

At all events, the exemption suggested for employ-

ment cases is difficult to reconcile with the personal

accountability of company officers under both Title

VII of the Civil Rights Act of 1964 and the Civil

Rights Act of 1866. See supra, pages 12-13. If agents

acting on behalf of their employer cannot escape in-

dividual liability under those statutes, how can a

“unit” rule properly be invoked to bar their being

4, considered “conspirators” within Section 1985(c)?

But that is not all. We can find no principled basis

for exempting employment discrimination alone. Is

not the policy or decision of a landlord, a railroad, a

bank, a restaurant, a private school, an amusement

park, equally “unitary”? Of course, in every area,

there may be two or more individuals who join in

acting contrary to the interests or the policy of the

organization. But our concern is with the moi com-

mon and more serious cases in which officers or agents

are discriminating on behalf of their principal. In

those circumstances, it is not possible to distinguish,

as more or less unitary, a decision not to hire or pro-

mote from a decision not to sell or rent or serve or

admit.

The upshot is that the “narrower argument” for

exemption is, in the end, the same as the broader

submission. And the practical result of sustaining,

either is to confine Section 1985(¢c) to wholly un-

authorized discriminatory schemes. That would be to

20

render the statute useless where the most serious

threat exists and where lies the greatest need of effec-

_ tive weapons: discrimination by established organiza-

tions. No doubt, in 1871, the major target was the

Klan and the primary focus was on physical violence.

But the statute then written was worded more broadly

to cover all conspiracies intended to deprive citizens

of equal enjoyment of any right secured by law.

Here, too, we should follow the injunction announced

by Mr. Justice Holmes, speaking for the Court, in

United States v. Mosley, 238 U.S. 383, 388 (1915);

“[N]ow that the Ku Klux have passed away * * *,

we cannot allow the past so far to affect the present

as to deprive citizens of the United States of the gen-

eral protection which on its face [the statute] most

reasonably affords.” Today, conspiracies are less vio-

lent, the members often wear business suits, and dis-

crimination is practiced in a corporate name. Yet, if

Section 1985(c) is to be given “a sweep as broad as its

language” (United States v. Price, 383 U.S. 787, 801

(1966) ), it still condemns schemes to deny equal

rights.

4. We do not suggest that Section 1985(c) reaches

every discriminatory act of a corporation or other

organization. First, of course, many “company” deci-

sions are made by an individual on his sole authority.

Moreover, as we have already noted, the fact that

several officers join in the decision does not auto-

matically create a “conspiracy.” The teaching of

Breckenridge is that there must be a shared dis-

criminatory animus and a joint purpose to accomplish

the prohibited injury. Thus, Section 1985(c) is by no

21

- means co-extensive with Title VII in the area of

employment discrimination. See Griggs v. Duke

Power Co., 401 U.S. 424 (1971). What is more,

difficulties of proof are likely to inhibit frequent appli-

cation of Section 1985(c)." But the allegations of the

present case clearly bring it within the statute and

no artificial obstacle ought to be erected to shield the

alleged conspirators from liability if they have done

what is charged against them.

_IL SECTION 1985(c) REDRESSES DEPRIVATIONS OF

RIGHTS SECURED BY TITLE VII

Constitutional objections aside (see infra, pages 30-

34), petitioners argue that Section 1985(c) cannot

be invoked to vindicate rights declared by Title VII

of the Civil Rights Act of 1964. Why this should be

so is not made entirely clear. But one proposition

seems to be that Section 1985(c) was intended to

reach only “violations of the fundamental rights of

citizens” secured by the Constitution itself, as then

recently amended. See Pet. Br. 24 n.18, 29. We turn

first to that objection.

1. The statute on its face is plainly not confined

to vindicating constitutional rights. In Breckenridge,

2 Many claims brought under Section 1985(c) have been

dismissed for failure to allege an actionable class-based con-

spiracy meeting the Griffin standard. See, e.g., Arnold v.

Tiffany, 487 F.2d 216 (9th Cir. 1973), cert. denied, 415 U.S.

984 (1974) (newspaper dealers) ; Askew v. Bloemaker, 548

F.2d 678 (7th Cir. 1976) (victims of illegal drug searches) ;

McLellan v. Mississippi Power & Light Company, 545 F.2d

919 (5th Cir. 1977) (bankrupts) ; Phillips v. International

Ass'n of Bridge, S. & O. Iron Workers, 556 F.2d 939 (9th

Cir. 1977) (dissident union members).

22

this Court held that Section 1985(c) does protect

against deprivation of the constitutional right of in-

terstate travel and rights embraced by the Thirteenth

Amendment. 403 U.S. at 104-106. But there is

no suggestion in that case that rights immediately

conferred by federal statutes—whatever the consti-

tutional underpinings—are not equally within the

scope of Section 1985(c). See 403 U.S. at 107. Nor

has it been shown why “privileges and immunities

under the laws” do not embrace all federal rights

guaranteed against private invasion by the statutes

of the United States. Cf. United States v. Waddell,

112 U.S. 76 (1884) ; Logan v. United States, 144 U.S.

263 (1892); In re Quarles and Butler, 158 U.S. 532

(1894). Indeed, except for the Fourth Circuit (Doski

v. Goldseker Co., 539 F.2d 1326 (1976) ), every court

that has considered the question has concluded that

“the laws” mentioned in Section 1985(c) connotes at

least some federal statutes. See, e.g., McLellan v.

Mississippi Power & Light Company, 545 F.2d 919

(5th Cir. 1977); Marlowe v. Fisher Body, 489 F.2d

1057 (6th Cir. 1973); Means v. Wilson, 522 F.2d

833 (8th Cir. 1975), cert. denied, 424 U.S. 958

(1976) ; Lopez v. Arrowhead Ranches, 523 F.2d 924,

928 (9th Cir. 1975) (by implication); Curran v.

Portland Superintending School Committee, 485 F.

Supp. 1063 (D. Maine 1977).

2. The correctness of this view is confirmed, if

need be, by examining the legislative history of the

provision. Nothing is clearer than that all those

who addressed what became Section 2 of the Ku

23

Klux Act of 1871 (and ultimately Section 1985(c) )

understood it to reach deprivations of rights conferred

or confirmed by federal statutes as well as the Con-

stitution. :

It is not debatable that, as originally introduced,

Section 2 protected rights defined by federal statutory

law. The original bill expressly referred to “rights,

privileges, or immunities of any person, to which he

is entitled under the Constitution and laws of the

United States.” Cong. Globe, 42d Cong., 1st Sess.

366 (1871) (emphasis added). See, also, id. at 382,

app. 113 (Rep. Shellabarger); 447 (Rep. Butler).

The only question is whether statutory rights re-

mained within the compass of the provision when

“Tt]he enormous sweep of the original language led to

pressures for amendment” (Breckenridge, supra, 403

U.S. at 100) and the present wording was substituted.

The Court, in Breckenridge, has already identified

the thrust of the narrowing amendment: “The expla-

nations of the added language centered entirely on the

animus or motivation that would be required.” 403

U.S. at 100. There is no hint that rights secured

by federal sta.utes would be removed from coverage,

leaving only those derived directly from the Constitu-

tion itself. On the contrary, concern was expressed

about including rights under state laws, but opponents

of the original bill accepted that violations of fed-

eral statutes were properly reached. E.g., Cong.

Globe, supra, at 579 (Sen. Trumbull). The point was

made explicit by Senator Thurman, a key opponent

(id. at 822):

24

If it were limited to offenses against the laws of

the United States or the Constitution of the

United States, it would be well worthy of con-

sideration * * * [m]y objection to it is that it

goes beyond offenses against the Constitution and

the laws of the United States * * *.

And, again (id. at app. 218):

[W]hat is meant by the word ‘laws’ in this sec-

tion so far as I have read it? An intelligent

court would decide that it meant the laws of the

United States * * *, @!

In sum, the opponents won their argument, not by

confining the provision to constitutional rights only,

but by requiring a discriminatory motivation. The

upshot is that Section 1985(c) no longer created “a

general federal tort law.” See Breckenridge, 403

U.S. at 100-102. That potential objection is wholly

removed by this Court’s ruling that deprivations of

rights are within the reach of the statute only when

there is “class-based, invidiously discriminatory ani-

mus behind the conspirators’ action.” Jd. at 102.

Thus, Section 1985(¢) remains much narrower than

its criminal analog, 18 U.S.C. 241. It embraces only

discriminatory interference with the enjoyment of

federal rights.“ That is a discrete and limited cate-

18 See, also, id. at 568 (Sen. Edmunds), app. 251 (Sen.

Morton).

This case, of course, does not present any question concern-

ing the extent to which Section 1985(c) protects the right un-

der the Fourteenth Amendment to the equal protection of

state law.

Petitioners asserted in the court of appeals that con-

spiracies against women are not actionable under Section

-1985(c). The court of appeals rejected this contention (Pet.

25

gory of wrongs, at the very heart of the concern that

animated the 42d Congress. So construed, Section

1985(¢c) does no more than fulfill its intended mis-

sion.

2. It is further objected, however, that conceding

the applicability of Section 1985(c) to private em-

ployment discrimination “would destroy the careful

enforcement mechanism created by Congress under

Title VII” (Pet. Br. 35). That argument is not un-

familiar. On many occasions, this Court has been

asked to construe modern civil rights legislation as

impliedly repealing or qualifying like statutes of a

century earlier and has declined to do so. Jones v.

Mayer Co., 392 U.S. 409, 418-417 (1968) ; Sullivan

v. Little Hunting Park, 396 U.S. 229, 2387-238

(1969) ; Johnson v. Railway Express Agency, Inc., 421

U.S. 454, 457-461 (1975); Runyon v. McCrary, 427

U.S. 160, 174-175 (1976). See, also, United States

v. Johnson, 390 U.S. 568 (1968). And, specifically,

the Court has rejected the argument in respect of

Title VII. Johnson v. Railway Express Agency, Inc.,

supra; McDonald v. Santa Fe Trail Transp. Co., 427

U.S. 273, 285-296 (1976). See, also Alexander v.

Gardner-Denver Co., 415 U.S. 36 (1974).

App. 16a-18a). Petitioners apparently have abandoned this

argument, since they do not raise it in the petition for cer-

tiorari. However, they state incorrectly that “No other cir-

cuit has ruled on application of Section 1985(3) to sex-based

classes” (Pet. Br. 18 n.12). Both the Eighth and Ninth

Circuits have specifically found sex-based conspiracies action-

able under Section 1985(c). Conroy v. Conroy, 575 F.2d 175

(8th Cir. 1978); Life Insurance Co. of North America v.

Reichardt, No. 75-8081 (9th Cir. Jan. 11, 1979).

26

These precedents are dispositive here. To be sure,

there are situations in which Congress, in declaring

new rights, has made it clear that they shall be en-

forced only in prescribed ways. E.g., Brown v. GSA,

425 U.S. 820 (1976); Santa Clara Pueblo v. Marti-

nez, 486 U.S. 49 (1978). In those circumstances,

we may assume, Section 1985(c) affords no supple-

mental remedy. But, as the Court has expressly held,

Title VII was not intended to shut off alternative

avenues of relief.” Section 1981 remains available.

There is no reasoned basis for concluding that Sec-

tion 1985(c) does not.

It is true that, unlike Sections.1981 and 1982 which

provide both right and remedy, Section 1985(c)

merely adds a remedy for violation of a right created

by other federal law, whether the Constitution or

statutes, such as Title VII. In this respect, our stat-

ute is of a kind with Section 1983 which vindicates

“rights, privileges or immunities secured by the Con-

stitution and laws.” Yet, it was explicitly noted in

connection with the enactment of the 1972 Amend-

ments to Title VII that Section 19838, like Section

1981, would remain applicable to employment dis-

crimination. See H.R. Rep. No. 92-238, 92d Cong.,

Ist Sess. 19 (1971); S. Rep. No. 92-415, 92d Cong.,

Ist Sess. 24 (1971); 118 Cong. Ree. 3371-3373

' The relevant legislative history of Title VII on this point

has so recently been recounted in this Court that we abstain

from rehearsing it once again. See Johnson v. Railway Ex-

press Agency, Inc., supra, 421 U.S. at 457-461; Runyon v.

McCrary, supra, 427 U.S. at 174 n.11.

27

(1972). Nor has it been suggested why any difference

should be made. Equally with the other statutes of the

same era, Section 1985(c) serves the end of providing

an “alternative means to redress individual griev-

ances,”’ which, in the case of Title VII, the Congress

deliberately chose to preserve. 118 Cong. Rec, 3371

(1972) (Sen. Williams). See, also, id. at 3370 (Sen.

Javits).

In any event, recognizing the applicability of Sec-

tion 1985(c) to redress employment discrimination

creates no practical problems. There is no cause to

apprehend that Title VII will be undermined. Al-

though Section 1985(c) may permit plaintiffs to avoid

Title VII’s mechanisms, there are major disincentives

for doing so, as recent experience with other statutes

which parallel Title VII attests.” The litigant who,

unlike Novotny, avoids Title VII’s administrative

procedures foregoes substantial benefits. His claim is

not investigated by the government; he therefore has

no access to the results of government-funded dis-

In the present case, of course, respondent did not at-

tempt to circumvent Title VII procedures. On the contrary,

he exhausted his administrative remedies.

Petitioners argue that Novotny did not name GAF’s di-

rectors in his EEOC charge. That omission would not bar

their inclusion as defendants in a Title VII suit. See Canavan

Vv. Beneficial Insurance Co., 558 F.2d 860 (8d Cir. 1977);

Chastang Vv. Flynn & Emrich Co., 365 F. Supp. 937, 963-964

(D. Md. 1978), aff'd, 541 F.2d 1040 (4th Cir. 1976). But if a

Title VII action were foreclosed because of Novotny’s omis-

sion, that would be an argument in favor of affirming the

court of appeals’ holding that Section 1985(c) survives as a

supplemental -remedy.

28

covery.’ The government cannot bring suit on his

behalf.” He is not entitled to appointment of counsel."

And the burden of proof is substantially more onerous:

under Section 1985(c), in addition to proving the

underlying Title VII violations, the plaintiff must

establish the existence of (1) a conspiracy; (2) class

based animus; and (3) an intent to deprive one of

rights protected by Title VII. Compare Griggs v.

Duke Power Co., supra.

Implied partial repeal of Section 1985(c), more-

over, would serve no substantial public purpose. To

the extent that conspirators such as GAF’s officers

desire the benefits of the conciliation features of Title

VII, they are always available, whether or not a

charge has been filed with the EEOC. See Section

705(g) (3) and (4).” On the other hand, to hold Sec-

tion 1985(c) inapplicable would render conspiracies

to violate Title VII immune from punitive and com-

pensatory damages, neither of which may be fully

available under Title VII. See Johnson v. Railway Ex-

press Agency, Inc., supra, 421 U.S. at 460. It would

also permit conspirators to take advantage of the

* See Section 706(b) of Title VII, 42 U.S.C. 2000e-5(b) ;

H. Kessler & Co. Vv. EEOC, 472 F.2d 1147 (5th Cir.) = banc),

cert. denied, 412 U.S. 989 (1978).

8 Section 706(f) (1) of Title VII, 42 U.S.C, 2000e-5 (f) (1).

"See Section 706(f)(1) of Title VII, 42 U.S.C. 2000e-

5(f) (1).

* 42 U.S.C. 2000e-4 (g) (3)-(4). See Young v. International

Telephone & Telegraph Co., 488 F.2d 757 (8d Cir. 1971).

29

fact that persons who file charges are often un-

sophisticated and unable to name all guilty individuals

in the charge which triggers Title VII’s administra-

tive processes. Cf. Love v. Pullman Co., 404 U.S.

522 (1972). Finally, Section 1985(c) alone reaches

co-conspirators who are not employers or unions but

who initiate or knowingly participate in employment

discrimination, such as an iasurer who compels an

employer to enter an insurance contract which de-

liberately discriminates on the basis of race or sex.”

In sum, what was said in Johnson v. Railway Ex-

press Agency, Inc., swpra, 421 U.S. at 459, applies

equally here: “Despite Title VII’s range and its de-

sign as a comprehensive solution for the problem of

invidious discrimination in employment, the aggrieved

individual clearly is not deprived of other remedies he

possesses and is not limited to Title VII in his search

for relief.” There is no warrant for denying victims

of invidious discrimination the additional remedy pro-

vided by Section 1985(c) in the aggravated circum-

tances to which that provision is uniquely addressed. ,

And the potential of such a recovery against the in-

dividual participants in an intentionally discrimina-

tory scheme can only serve as a salutary deterrent.

*1 Contrary to petitioners’ assertion (Pet. 18, n.9), Section

1985(c) would not reach employment discrimination by em-

ployers with fewer than 15 employees, since no underlying

Title VII violation could be established against such an em-

ployer. See, infra, pages 33-34.

30

III. SECTION 1985(c) IS CONSTITUTIONAL AS AP-

PLIED TO VIOLATIONS OF TITLE VII

1. There is, in truth, no constitutional question in

the case.” No serious contention could be made that

Congress lacks power to reach those who conspire to

violate rights declared by a federal statute, itself of

undoubted constitutionality. Indeed, the Court has

recognized the constitutional propriety of affording a

remedy against wholly private action that interferes

with the exercise of rights originally protected only

against hostile State action. United States v. Guest,

883 U.S. 745, 761 (1966) (Clark, J., concurring), 774

(Brennan, J., concurring and dissenting). But, how-

ever that may be, no issue can arise when, as is the

case under Title VII, the substantive right itself runs

against private discrimination and the remedial stat-

ute merely provides alternative relief. Insofar as it

reaches private action, that has been the premise of

the decisions under 18 U.S.C. 241 since United States

v. Waddell, supra. Nor is it any objection that the

“vindicating” statute casts a wider net, encompassing

“outsiders” who seek indirectly to deprive the in-

tended beneficiary of substantive federal rights else-

where declared. United States v. Johnson, supra.

* Because the court of appeals regarded the Commerce

Clause as a fully adequate squrce of congressional power, it

declined to reach the question whether the Thirteenth or the

Fourteenth Amendment would support the application of Sec-

tion 1985(c) to Title VII rights (Pet. App. 46a, 50a n.110).

For the same reason, we agree that it is unnecessary to reach

these constitutional issues.

>

31

As we understand it, these propositions are unchal-

lenged, Instead, although they speak of “constitu-

tional” impediments, petitionerS argue that Section

1985(c) was not intended to implement legislation

premised on the Commerce Clause. That is, of course,

a purely statutory question. Cf. United States v.

Price, 383 U.S. 787, 789 (1966).

2. We note, first, that in Breckenridge the Court

identified the right of interstate travel as one of the

“privileges and immunities” protected by Section

1985(¢c). 408 U.S. at 105-106. The constitutional

origin of that right was not identified, except for the

statement that it “does not necessarily rest on the

Fourteenth Amendment.” /d. at 105. Plainly, it was

deemed unnecessary to determine whether the drafters

of Section 1985(c) expressly invoked whatever con-

stitutional provisions established the right to travel

interstate. The same approach was followed in United

States v. Guest, supra, in reaching the conclusion that

18 U.S.C. 241 vindicates the same right. 383 U.S. at

759. So here. As it happens, moreover, the right of

interstate travel may derive from the Commerce

Clause. See Shapiro v. Thompson, 394 U.S. 618, 630

(1969); United States v. Guest, supra, 383 U.S. at

758-759; Edwards v. California, 314 U.S. 160, 174

(1941); Passenger Cases, 48 U.S. (7 How.) 283,

492 (1849) (Taney, C.J. dissenting); Crandall v.

State of Nevada, 73 U.S. (6 Wall.) 35, 49 (1867)

(Clifford, J., dissenting).

So long as it is clear that Congress meant to reach

aggravated violations of all federal rights—save per-

82

haps those conferred with exclusive enforcement

mechanisms—it cannot matter whether each of the

potentially applicable sources of legislative power was

identified at the time. Cf. Ex parte Yarbrough, 110

U.S. 651, 658, 666 (1884). And it is equally irrele-

vant that the 42d Congress may have entertained a

broader view of the Privileges and Immunities Clauses

of both Article IV and the Fourteenth Amendment,

and a narrower view of the Commerce Clause,

than obtains today, provided it intended to “put forth

all its powers.” United States v. Mosley, supra, 238

U.S. at 887-388. Indeed, if all federal rights were

meant to enjoy the protection afforded by Section

1985(c)—albeit only when threatened by invidiously

motivated: conspiracies—there can be no objection to

including Title VII rights merely because the enact-

ment of such a statute was not envisaged in 1871.

Any other rule would confine Section 1985(c) to

rights already declared, and, in this respect, there is

no more basis for so restricting the broad language

of our provision than in the case of its criminal

analog, 18 U.S.C. 241. See, eg., United States v.

Johnson, supra; United States v. Classic, 313 U.S.

299, 315-320 (1941).

8. We have already discussed the breadth of Sec-

tion 1985(c) and shown it to be what its words in-

dicate, a general statute enacting a remedy—and a

deterrent—for aggravated group action, animated by

class bias, which is intended to deprive citizens of

rights secured by federal law. What we have noticed

in the legislative history of the provision makes clear

that “privileges and immunities under the laws” in-

eS

33

~ elude all federal statutory rights, present and future,

whatever their constitutional underpinnings. Lest

any question remain, one or two further references

may be appropriate.

The sponsors of the legislation left no doubt that

they meant to invoke every source of power. Not

only were the Thirteenth, Fourteenth and Fifteenth

Amendments expressly mentioned, but also the Privi-

leges and Immunities Clause and the Republican Form

of Government Clause of Article ITV. Cong. Globe,

supra, at 500 (Sen. Frelinghuysen). More broadly,

it was said that Congress must act to “the uttermost

bound * * * of its constitutional power” (id. at

691 (Sen. Edwards)), and carry out “all the

powers in the Constitution” (id. at 882 (Rep.

Hawley)). Senator Edmunds, the leading Senate

sponsor, was explicit that the provision would vindi-

cate rights created by all federal statutes, present

and future. As he said, it would extend to “the rights

which the Constitution and the laws of the United

States made pursuant to it give to [citizens], * * *

whatever those laws may be.” 7d. at 568. Of course,

as the Court noted in Breckenridge, the provision was

narrowed to reach only concerted action motivated by

hostility to a class of citizens. But all rights con-

ferred by federal law remain ‘protected against such

invidious conspiracies.

4. Only one point remains: the suggestion that

Section 1985(c) purports to reach employers not

within the coverage of Title VII. There is simply no

basis for that objection. As we have sufficiently ex-

plained, Section 1985(c) merely affords a remedy to . CONCLUSION

those whose Title VII rights have been violated in a «.

particular way. It follows that persons not under For the reasons stated, the judgment of the court

the umbrella of Title VII are not entitled to invoke of appeals should be affirmed.

Section 1985(¢). There is thus no question of consti-

tutional overreaching.” The two statutes operate in

‘complete harmony, and their coexistent applicability

serves to effectuate the congressional purpose under-

: WADE H. McCREE, Jr.

lying each of them. Settctien General

Drew S. Days, III

Assistant Attorney General

Lou!s F. CLAIBORNE

Assistant to the Solicitor General

WALTER W. BARNETT

JOAN F. HARTMAN

MILDRED M. MATESICH

Attorneys

Respectfully submitted.

a

Isste L. JENKINS

Acting General Counsel

LuTZ ALEXANDER PRAGER

Assistant General Counsel

PAUL E. MIRENGOFF

Attorney

Equal Employment Opportunity Commission

| MARCH 1979

“Tf there were, Breckenridge teaches that possible uncon-

stitutional applications are no ground for declining to give

Section 1985(c) its permissible reach in a case plainly within

constitutional limits. 403 U.S. at 104,

’

W ou. 8, covernmenr PRINTING OFFICE; 1979 269973 369