Amicus Curiae Brief — Trans World Airlines, Inc. v. Thurston

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Nos. 83-997, 83-1325

IN THE

Supreme Court of the Ruited States

OCTOBER TERM, 1983

TRANS WORLD AIRLINES, INC.,

7 Petitioner,

HAROLD H. THURSTON, CHRISTOPHER J. CLARK, C.A.

PARKHILL, EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION and AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL, Respondents.

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,

w. Petitioner,

HAROLD H. THURSTON, CHRISTOPHER J. CLARK, C.A.

PARKHILL, EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION and TRANS WORLD AIRLINES, INC.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Second Circuit

WOTION TO SUBMIT BRIEF AS AMICUS CURIAE

AND BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT-OF REVERSAD

ROBERT E. WILLIAMS

DouGLas S. MCDOWELL

THOMAS R. BAGBY *

; : — Be MCGUINESS & WILLIAMS

(PY 1015 Fifteenth Street, N.W.

BEST AVAILABLE C Washington, D.C. 20005

thd 4 (202) 789-8600

Attorneys for Amicus Curiae

Equal Employment

Advisory Council

May 17, 1984 * Counsel of Record

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

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....

MOTION FOR LEAVE TO FILE BRIEF AS AMICUS

CURIAE

INTEREST OF THE AMICUS CURIAE

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

I. THE COURT OF APPEALS ERRED IN FIND-

ING A WILLFUL VIOLATION OF THE ADEA

AND IN IMPOSING LIQUIDATED DAM-

AGES IN THE ABSENCE OF A SPECIFIC

INTENT TO VIOLATE THE ACT

A. A “Specific Intent” Standard Is Most Con-

sistent With The Statutory Scheme And The

Intent Of Congress

. A Standard That Declines To Require “Spe

cific Intent” Ignores Congressional Intent To

Limit Liquidated Damages To Conscious

Violations

A UNION FOUND TO HAVE VIOLATED

THE ACT SHOULD BE HELD ACCOUNT-

ABLE FOR MONETARY DAMAGES

CONCLUSION

ii

TABLE OF AUTHORITIES

Cases:

Allen v. Amalgamated Transit Union Local 788,

554 F.2d 876 (8th Cir.), cert. denied, 434 US.

BOL (1977) .---------------n--e0-nn-nnnneennennnnnenennnennnsnnnnnnnnns

Blackwell v. Sun Elec. Corp., 696 F.2d 1176 (6th

Ge, SD ccccnsentnn ae

Bowen v. U.S. Postal Service, 103 8.Ct. 588 (1983) ..

Cowen v. Standard Brands, Inc., 572 F. Supp. 1576

(N.D. Ala. 1988) .......----------------e--n-eesnsenseenesnennennnnes

Crosland v. Charlotte Eye, Ear and Throat Hosp.,

686 F.2d 208 (4th Cir. 1982) ........-.....-----------------

Dean v. American Sec. Ins. Co., 559 F.2d 1036 (5th

Cir. 1977), cert. denied, 434 U.S. 1066 (1978) -...

Donnell v. General Motors Corp., 576 F.2d 1292

(Sth Cir. 1978) .........----------------s-e-nsen-eeeneeneneeenenensens

EEOC v. Air Line Pilots Ass’n, 489 F. Supp. 1003

(D. Minn. 1980), reversed on other grounds, 661

F.2d 90 (8th Cir. 1981) -.......--.------------------------------*

Frank Irey, Inc. v. OSHRC, 519 F.2d 1200 (3d

Cir. 1974), aff'd in banc, 519 F.2d 1215 (1975),

aff'd on other grounds sub nom. Atlas Roofing

Co. v. OSHRC, 430 U.S. 442 (1977) .......--------------

Furnco Construction Corp. v. Waters, 438 U.S. 56

(1GTB) ne eocnnnnenn-nnnnenneoe-nenarnecesnnnnsseennensnecosnnsnens- sas

Gardner v. Westinghouse Broadcasting Co., 437

U.S. 478 (1978) .....-------------------------ceenenennnennceeenneees

Geller v. Markham, 635 F.2d 1027 (2d Cir. 1980),

cert. denied, 451 U.S. 945 (1981) ~.-.....------------------

Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir.

WQBL) ncencnnnneenveo--one-ne-nne-nnneceennneoeennnsnnenenensennnsnossoosnes

Hodgson v. Sagner, Inc., 326 F. Supp. $871 (D. Md.

1971), aff'd sub nom. Hodgson v. Baltimore Re-

gional Joint Board, 462 F.2d 180 (4th Cir.

Sf | 7 Ee

Int'l Brotherhood of Teamsters v. United States,

431 U.S. 324 (1977) -.-----.-----------------0--o---nneneseeeenee*

Kelly v. American Standard, Inc., 640 F.2d 974

(Oth Cir. 1981) ........------------------------n-ne-neneeeeenereene

Koyen v. Consolidated Edison Co., 560 F. Supp.

1161 (S.D.N.Y. 1983) ....-.-----------------------0-----e0eneo==*

Page

20

19

iii

TABLE OF AUTHORITIES—Continued

Page

Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. “°

a ng EE 7, 12, 14, 20

Lorillard v. Pons, 434 U.S. 573 (1978) .. aici .... vii, 10

McDonnell Douglas Corp. v. Green, 411 U.S. 792

ge ME 5

Neuman v. Northwest Airlines, 28 FEP Cases 1488

is csentaesneunescneconeoummenes , 26

Northwest Airlines v. Transport Workers Union,

I creenmbeteesesnboorooonnnes 23

Orzel v. City of Wauwatosa Fire Dept., 697 F.2d

743 (7th Cir.), cert. denied, 104 S.Ct. 484

SA 14

Shell Oil Company v. Dartt, 434 U.S. 99 (1977) ...... vii

Spagnuolo v. Whirlpool Corp., 641 F.2d 1109 (4th

Cir.), cert. denied, 454 U.S. 860 (1981) -.......... . 16

Spies v. United States, 317 U.S. 492 (1943) ............. 12

Syvock v. Milwaukee Boiler Mfg. Co., Inc., 665

a5 565 Coe Cor. IGGL) -..-.--.-..-.......--... ...7, 12, 14, 20

Texas Department of Community Affairs v. Bur-

dine, 450 U.S. 248 (1981) -...........--. | vii

United Air Lines, Inc. v. McMann, 434 U.S. 192

a a caccensisionn saallaieaie ide 3

Vaca v. Sipes, 386 U.S. 171 (1967) . oat oC 25

Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir.

Se 15

Whittlesey v. Union Carbide Corp., 567 F. Supp.

I I sc nscisenrnssntescnnescorevesnenceeeeroes 14

Zipes v. Trans World Airlines, Inc., 455 U.S. 385

cr Ta acre vii

Statutes, Rules and Regulations:

Age Discrimination in Employment Act of 1967, as

amended, 29 U.S.C. §§ 621-634:

Section 4(a), 29 U.S.C. § 623 (a) -............--......... 9

Section 4(c), 29 U.S.C. § 623(c) ...........--.-----.--. 22

Section 4(d), 29 U.S.C. § 623 (d) -...................-.-. 22

Section 4(e), 29 U.S.C. § 623(e) -...............-... ; 22

iv

TABLE OF AUTHORITIES—Continued

Page

Section 4(f) (1), 29 U.S.C. § 623 (f) (1) ........--.. 2,4

Section 7(b), 29 U.S.C. § 626 (b) ......... 9, 10, 12, 18, 20,

23, 24, 26

Equal Pay Act of 1963, 29 U.S.C. § 206(d) -.......... . 28, 25

Fair Labor Standards Act, as amended, 29 U.S.C.

§ 201, et seq.:

4 10

Occupational Safety and Health Act of 1970, as

amended, 29 U.S.C. § 651, et seq. 16

Portal-to-Portal Pay Act, Section il, 29 U. S. C.

III ila ata aectciataamessiianaitaisanailiiiede esteemed 10°

Railway Labor Act, 45 U.S.C. § 151, et seq. -........... 3, 4

Rule 42.3, Rules of the Supreme Court of the

Supreme Court of the United States .................. VI

14 C.F.R. § 211.383 (c) -.... Jeteadie ER eee aE gee rome

Legislative Materials:

113 Cong. Rec. 2199 (1967) ........... Oey et ‘it 11

ESTES PAE LISS REN 22

SETA NTC HET IE 11

ee 22

| ___, I ESIESE SIRT eae casei aati 22

Other Authorities:

A. Blumrosen, Interpreting the ADEA: Intent or

Impact, in Age Discrimination in Employment

Act: A Compliance and Litigation Manual for

Lawyers and Practitioners 68 (1982) ................... 20

Note, Age Discrimination and the Disparate Impact

Doctrine, 34 Stan. L. Rev. 837 (1982) ......... aia 20

Smith & Leggette, Recent Issues in Litigation Un-

der the Aye Discrimination in Employment Act,

41 Ohio St. L. J. 349 (1980) ....... Ia LEO ae a 18

ee

IN THE

Suprene Court of the United States

OCTOBER TERM, 1983

Nos. 83-997, 83-1325

Petitioner,

HAROLD H. THURSTON, CHRISTOPHER J. CLARK, C.A.

PARKHILL, EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION and AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL, Respondents

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL,

. Petitioner,

HAROLD H. THURSTON, CHRISTOPHER J. CLARK, C.A.

PARKHILL, EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION and TRANS WORLD AIRLINES, INC.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Second Circuit

MOTION OF THE

EGUAL EMPLOYMENT ADVISORY COUNCIL

FOR LEAVE TO SUBMIT BRIEF AS AMICUS CURIAE

(v)

——— ee. MSNSCC—__09” 9 '-'—_ -_'—_ '—., 00 0_€_—_ 00 Ou oe —i—

vi

To the Honorable, the Chief Justice and the Asso-

ciate Justices of the United States Supreme Court:

Pursuant to Rule 42.3 of the Rules of this Court,

the Equal Employment Advisory Council (“EEAC”’)

moves this Court for leave to file the accompanying

brief as Amicus Curiae supporting Trans World

Airlines, Inc., the petitioner in No. 83-997 and the

respondent in No. 83-1825. In support of this motion,

EEAC shows as follows:

1. EEAC is a voluntary nonprofit association or-

ganized to promote the common interest of employers

and the general public pertaining to nondiscrimina-

tory employment practices. Its membership com-

prises a broad scyment of the employer community in

the United States, including both individual employ-

ers and trade and industry associations. The Council

is governed by a board of directors which is composed

primarily of experts and specialists in the field of

equal employment opportunity whose combined ex-

perience gives the Council a unique depth of under-

standing of the practical and legal considerations rel-

evant to the proper interpretation and application of

equal employment policies and requirements. The

members of EEAC are firmly committed to the prin-

ciples of nondiscrimination and equai employment

opportunity.

2. Substantially all of the Council’s members, or

their constituents, are subject to the provisions of the

Age Discrimination in Employment Act of 1967, as

amended, 29 U.S.C. §§ 621-634 (the “ADEA”). As

such, they have a direct interest in the issues pre-

sented for the Court’s determination in this case—

ie., whether the ADEA requires an employer to ac-

commodate employees for an age-related reason

vii

merely because it provides accommodation for non-

age-related reasons; whether specific intent to dis-

criminate is necessary to establis!. a “willful” viola-

tion of the ADEA; and whether a union found jointly

with an employer to have violated tue ADEA can be

absolved from liability for monetary damages.

8. Because of its interest in issues arising under

the ADEA, the Council has participated as amicus

curiae in a number of cases in this Court involving

the interpretation and enforcement of the Act. See,

e.g., Lorillard v. Pons, 434 U.S. 573 (1978); Shell

Oil Co. v. Dartt, 434 U.S. 99 (1977). In addition,

EEAC has filed briefs as amicus curiae on numerous

other occasions in this Court. See, e.g., Texas Depart-

ment of Community Affairs v. Burdine, 450 U.S. 248

(1981); Furnco Construction Corp. v. Waters, 438

U.S. 567 (1978); Int’l Brotherhood of Teamsters v.

United States, 431 U.S. 324 (1977).

4. In several cases, EEAC sought and was granted

permission by this Court to file such briefs. See, e.g.,

Furnco Construction Corp. v. Waters, 438 U.S. 567

(1978); Gardner v. Westinghouse Broadcasting Co.,

437 U.S. 478 (1978); Shell Oil Company v. Dartt,

434 U.S. 99 (1977); Zipes v. Trans World Airlines,

Inc., 455 U.S. 385 (1982).

5. Trans World Airlines, the Air Line Pilots As-

sociation and the United States have consented to the

filing of this brief. Their consents have been filed

with the Clerk. Efforts to obtain the consent of the

counsel for the respondents Harold H. Thurston,

Christopher J. Clark, and C. A. Parkhill were un-

successful, thus necessitating this motion.

viii

WHEREFORE, it is respectfully moved that

EEAC be granted leave to file the accompanying brief

amicus curiae in this case.

Respectfully submitted,

THOMAS R. BAGBY

McGuINEsS & WILLIAMS

1015 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 789-8600

Counsel for the Amicus Curiae

Equal Employment

Advisory Council

May 17, 1984

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

Nos. 83-997, 85-1325

TRANS WORLD AIRLINES, INC.,

2 Petitioner,

HAROLD H. THURSTON, CHRISTOPHER J. CLARK, C.A.

PARKHILL, EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION and AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL, Respondents.

Arr LINE PILOTS ASSOCIATION, INTERNATIONAL,

” Petitioner,

HAROLD H. THURSTON, CHRISTOPHER J. CLARK, C.A.

PARKHILL, EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION and TRANS WORLD AIRLINES, INC.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

The Equal Employment Advisory Council

(“EEAC”) respectfully submits this brief amicus

tt ~

2

curiae in support of Trans World Airlines, Inc.

(“TWA”), the petitioner in No. 83-997 and the re-

spondent in No. 83-1325, contingent upon the Court’s

granting the accompanying motion.

INTEREST OF THE AMICUS CURIAE

The interest of the EEAC in this case is fully set

forth in the accompanying motion.

STATEMENT OF THE CASE

In 1978, TWA decided to permit flight deck crew

members in the status of “flight engineer” * to work

until age seventy. Prior to this time, TWA’s policy

had been to require all flight crew members, includ-

ing “captains” (pilots), “first officers” (co-pilots)

and “flight engineers” to retire at age sixty. Federal

Aviation Administration (FAA) regulations prohibit

persons who have reached their sixtieth birthday from

serving as pilots. 14 C.F.R. § 121.383(c). The par-

ties do not dispute that an age below sixty is a bona

fide occupational qualification (“BFOQ”) under 29

U.S.C. § 623(f)(1)* with respect to pilots and co-

pilots. No FAA regulation requires the retirement at

age sixty of flight engineers.

Prior to 1978, the ADEA had been interpreted to

permit the mandatory retirement of persons such as

1 Flight engineers are present on most commercial flights

and are responsible, among other things, for pre-flight inspec-

tion and in-flight monitoring of the aircraft.

2 29 U.S.C. § 623(f) (1) provides in relevant part as follows:

It shall not be unlawful for an employer... (1) to take

any action otherwise prohibited under subsections (a),

(b), (c), or (e) of this section where age is a bona fide

occupational qualification reasonably necessary to the nor-

mal operation of the particular business...

3

TWA’s flight engineers before age sixty-five if the

retirement was pursuant to a bona fide employee

benefit plan which was not being used to circumvent

the policies underlying the ADEA. See United Air

Lines, Inc. v. McMann, 434 U.S. 192 (1977). In

1978, however, the ADEA was amended to prohibit

involuntary retirement before age seventy pursuant

to a bona fide employee benefit plan. As a result of

the 1978 amendments to the ADEA, TWA changed

its policy to prohibit the mandatory retirement of

“any cockpit member who [was] in a Flight Engi-

neer status at age 60.” The result of this change in

policy was to permit flight engineers reaching age

sixty to continue in employment and to permit cap-

tains and first officers to downbid to the position of

flight engineer and to remain in that position beyond

age sixty. The downbidding of captains and first offi-

cers was governed by TWA’s “Working Agreement”

with the Air Line Pilots Association (“ALPA”).

Most of the pilots and first officers who desired to do

so were able to downbid successfully to a flight engi-

neer position before reaching age sixty and to con-

tinue in that position after reaching age sixty.

ALPA filed suit against TWA (hereinafter the

“ALPA” action) maintaining that the policy of al-

lowing anyone to work in the cockpit past age sixty

breached the Working Agreement and the Railway

Labor Act, 45 U.S.C. § 151, et seg. (“RLA’”). In ad-

dition, several captains who were not able to downbid

to flight engineer positions were mandatorily retired

at age sixty and filed suit (hereinafter the “Thurs-

ton” action) challenging the policy under the ADEA.’

*The Equal Employment Opportunity Commission

(“EEOC”) was allowed to intervene in the Thurston action

as a plaintiff on behalf of other crew members who might be

affected by TWA’s policy.

4d

Their complaint alleged that TWA’s “age sixty” pol-

icy had not gone far enough to accommodate them

and was unlawful under the ADEA.

The district court, in an opinion reported at 547

F. Supp. 1221 (S.D.N.Y. 1982), held in the ALPA

action that TWA’s elimination of its age sixty retire-

ment policy for flight engineers was not a “major”

dispute under the RLA. The court also held, over

ALPA’s objection, that an age under sixty for flight

engineers was not a BFOQ within the meaning of 29

U.S.C. § 623(f)‘1) of the ADEA, and that TWA

had acted iawfully in employing persons over age

sixty as flight engineers. Accordingly, the district

court granted summary judgment to TWA in the

ALPA action.

With regard to the Thurston action, the district

court determined that none of the plaintiffs or EEOC

claimants had demonstrated that a flight engineer

vacancy existed at the time he applied for and was

eligible for the job. Accordingly, the district court

granted summary judgment for TWA in the Thurs-

ton action as well. In doing so, the court stated that:

From these undisputed facts these plaintiffs and

claimants cannot establish a prima facie case of

discrimination solely because no job vacancy ex-

isted at the time they applied and were eligible

for the job. TWA was legally obligated to re-

move these pilots at age sixty under the FAA

regulations. TWA was not obligated, however,

to offer these ex-pilots jobs which did not exist.

To the extent jobs existed, TWA was justified in

relying upon a seniority bidding system. 547 F.

Supp. at 1229 (citation omitted).

The court of appeals, in a decision reported at 713

F.2d 940 (2d Cir. 1983), unanimously affirmed the

5

district court decision in the ALPA action, holding

that the elimination of the age sixty retirement pol-

icy for flight engineers did not violate the RLA.

In a divided opinion, however, the court of appeals

reversed the district court decision in the Thurston

action. Initially the court of appeals agreed with the

district court that “[a]pplying the McDonnell Doug-

las ‘*! formula here, it is clear, as the district court

held, that appellants could not establish that there

were flight engineer vacancies at the time they ap-

plied to transfer.” 713 F.2d at 952. Nevertheless,

the court stated that “[a] plaintiff is not barred by

the McDonnell Douglas method from making out a

prima facie case of age discrimination by alternative

means, such as direct proof that an employer discrim-

inates on the basis of age.” Id. (Emphasis in origi-

nal).

The court held that TWA’s policy violated the

ADEA, stating that:

In short, because TWA routinely accommodates

other employees who seek to downgrade to flight

engineer for non-age reasons and has failed to

come forward with a permissible reason for its

refusal to accord the same treatment to age-60

captains and first officers, the Thurston litigants

and the EEOC must prevail on their ADEA

claim. 713 F.2d at 955. (Footnote omitted).

The court also held that ALPA violated the ADEA by

its role in the formulation and administration of the

“age sixty” policy. 713 F.2d at 956. Despite finding

ALPA liable for violations of the ADEA, the court

*See McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1978).

6

limited the relief against ALPA to injunctive relief,

holding that the ADEA does not permit awards of

back pay against a union. 713 F.2d at 957.

On the issue of liquidated damages,’ the court

stated that “in a case based on discriminatory treat-

ment, such as the present one, plaintiffs need not

prove a specific intent to violate the ADEA; it is

sufficient to establish that the employer either knew

or showed reckless disregard for the matter of

whether its conduct was prohibited by the ADEA.”

713 F.2d at 956. Accordingly, the court ordered

liquidated damages against TWA.

Judge Van Graafeiland dissented with respect to

the portion of the opinion hoiding TWA liable in the

Thurston action, stating that:

Apparently, TWA is the only trunk airline that

voluntarily has permitted pilots over 60 to ccn-

tinue working as flight engineers. Instead of re-

ceiving commendation for what it has done,

TWA is held liable as a matter of law for age

discrimination. 713 F.2d at 957.°

5 See the discussion below regarding liquidated damages and

the standard for an award of such damages.

6 TWA has fully briefed the issue of whether the ADEA re-

quires an employer to accommodate employees for an age-

related reason merely because it provides accommodation for

non-age-related reasons. Therefore, it is not necessary for

EEAC to repeat the persuasive arguments of TWA regarding

this issue, in which EEAC fully concurs. Because of page

limitations and in order more fully to address the remaining

issues, EEAC has limited its brief to the other two issues.

7

SUMMARY OF ARGUMENT

The court below erred in holding that a “willful”

violation of the ADEA may be established in the ab-

sence of a specific intent to violate the Act. That

Congress provided for liquidated damages under the

ADEA “only in instances of willful violations” indi- .

cates that more than a mere showing that age was a

factor in an employment decision is required before

liquidated damages may be awarded. “Willfulness”

under the liquidated damages provision requires more

than the mere intent to do the act that gave rise to

the violation—it requires a specific intent to violate

the Act.

The decisions of the First and Seventh Circuits in

Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979),

and Syvock v. Milwaukee Boiler Mfg. Co., Inc., 665

F.2d 149 (7th Cir. 1981), adopting a “specific in-

tent” standard for liquidated damages are consistent

with the Congressional purpose of awarding liqui-

dated damages only against defendants who inten-

tionally and consciously violate the Act. The focus

of these decisions on the “state of mind” of the de-

fendant at the time of the violation is consistent with

the plain language and the legislative history of the

liquidated damages provision of the ADEA and

should be adopted by this Court. The “specific in-

tent” test for liquidated damages also serves to fur-

ther the “two-tier” approach to “willful” and “non-

willful” violations envisioned by Congress.

Decisions of the lower courts that have declined to

impose a specific intent requirement for awarding

liquidated damages fail to consider that a “two-tier”

statutory framework was established precisely to

prevent an automatic award of liquidated damages.

8

The failure of these courts toe require a “specific in-

tent” standard will result in the virtual automatic

doubling of damages, in direct contravention of Con-

gressional intent.

The decision of the court below, which declined to

award monetary damages against a union found to

have violated the ADEA, ignores the clear intent of

Congress to end age discrimination by both employers

and unions. An award of monetary damages against

a union found to be in violation of the ADEA is con-

sistent with the statutory language and purposes of

the Act and will serve the important purpose of de-

terring union discrimination. Without the likelihood

of monetary liability, there is no effective deterrent

to prevent unions from engaging in unlawful discrim-

ination.

ARGUMENT

I. THE COURT OF APPEALS ERRED IN FINDING A

WILLFUL VIOLATION OF THE ADEA AND IN

IMPOSING LIQUIDATED DAMAGES IN THE AB-

SENCE OF A SPECIFIC INTENT TO VIOLATE

THE ACT

A. A “Specific Intent” Standard Is Most Consistent

With The Statutory Scheme And The Intent Of

Congress

The court of appeals below erred in holding that a

“willful” violation of the ADEA may be found in the

absence of a specific intent to violate the ADEA. The

language of the opinion below renders double dam-

ages virtually automatic. The court stated that “ ‘[i]n

a disparate treatment case . . . an employer’s action,

if taken because of an impermissible factor such as

age, cannot be the result of negligence, mistake, or

other innocent reasons.’” 713 F.2d at 956. (Empha-

sis in original).

9

The standard adopted by the court of appeals is

contrary to the intent of Congress in limiting liqui-

dated damages to instances of “willful” violations and

to the better reasoned lower court decisions. Accord-

ingly, the ste tory distinction between “willful” and

“non-willful” violations will be served best by a

standard requiring a specific intent to violate the Act

before liquidated damages are imposed.

The ADEA prohibits discrimination in the work-

place based on age. Section 4(a), 29 U.S.C. § 623(a).

The ADEA is enforced in accordance with the proce-

dures provided under the Fair Labor Standards Act

(FLSA), 29 U.S.C. §§ 201, et seqg., with certain

notable exceptions. Pursuant to Section 7(b) of the

Act, 29 U.S.C. § 626(b),’ violations of the ADEA

generally are to be treated as violations of the FLSA,

? Section 7(b) reads in relevant part as follows:

The provisions of this chapter shall be enforced in accord-

ance wit the powers, remedies, and procedures provided

in sections 211(b), 216 (except for subsection (a)

thereof), and 217 of this title, and subsection (c) of this

section. Any act prohibited under section 623 of this title

shall be deemed to be a prohibited act under section 215

of this title. Amounts owing to a person as a result of a

violation of this chapter shall be deemed to be unpaid

minimum wages or unpaid overtime compensation for

purposes of sections 216 and 217 of this title: Provided,

That liquidated damages shall be payable only in cases of

willful violations of this chapter. In any action brought

to enforce this chapter the court shall have jurisdiction

to grant such legal or equitable relief as may be appropri-

ate to effectuate the purposes of this chapter, including

without limitation judgments compelling employment, re-

instatement or promotion, or enforcing the liability for

amounts deemed to be unpaid minimum wages or unpaid

overtime compensation under this section. (Emphasis

added ) .

10

with amounts owing as a result of a violation of the

ADEA treated as “unpaid minimum wages or unpaid

overtime compensation” under the FLSA. Section

7(b), 29 U.S.C. § 626(b).

In contrast to the automatic doubling of damages

for violations of the FLSA, 29 U.S.C. § 216(b),°* the

ADEA provides that “liquidated damages shall be

payable only in cases of willful violations of this

chapter.” 29 U.S.C. § 626(b). Thus, it is clear that

Congress, by restricting liquidated damages under the

ADEA to “willful” violations of the Act, intended in

plain statutory language to limit the awarding of

liquidated damages in ADEA cases.’ In order to de-

termine the extent of this limitation on liquidated

damages under the ADEA, it is helpful to examine

the legislative history surrounding the incorporation

of the “willful” standard, as well as the cases that

have interpreted that standard.

The legislative history of the ADEA liquidated

damages provision evidences the intent of its sponsor

and Congress to impose liquidated damages only

where an employer acts with the specific intent to

829 U.S.C. §216(b) “[b]y its terms . . . requires that

liquidated damages be awarded as a matter of right for viola-

tions of the FLSA.” Lorillard v. Pons, 434 U.S. 575, 581 n.8

(1978). Section 11 of the Portal to Portal Pay Act, 29 U.S.C.

§ 260, provides that liquidated damages need not be paid if

the employer shows that his act or omission was in good faith.

To this limited extent, Section 11 mitigates the otherwise

automatic doubling of damages under 29 U.S.C. § 216.

®In Lorillard v. Pons, supra, 434 U.S. at 581, this Court

noted with regard to liquidated damages that “Congress altered

the circumstances under which such awards would be available

in ADEA actions by mandating that such damages be awarded

only where the violation of the ADEA is willful.”

11

violate the Act. As originally proposed, the ADEA

would have incorporated criminal penaities. 113

Cong. Rec. 2199 (1967). The substitution of the

“willful” standard for liquidated damages was de-

signed to serve the same purposes of deterring and

punishing violators as the criminal provision would

have served. See 113 Cong. Rec. 7076 (remarks of

Sen. Javits).

In Dean v. American Sec. Ins. Co., 559 F.2d 1036

(5th Cir. 1977), cert. denied, 434 U.S. 1066 (1978),

the Fifth Circuit had occasion to consider the pur-

poses of the ADEA liquidated damages provision. In

holding that punitive damages are not available un-

der the ADEA, the court noted that:

It is quite apparent that Senator Javits, sponsor

of the original bill and the amendments thereto

which appear in the final enactment, held the

view that liquidated damages could effectively

supply the deterrent and punitive damages which

both criminal penalties and punitive damages

normally serve. 559 F.2d at 1040. (Footnote

omitted).

The “specific intent” standard for finding a “willful”

violation most closely carries out the intent of Con-

gress that the provision “deter” and “punish” “will-

ful” violators of the Act. That Congress, which was

aware of the automatic double damage provision of

the FLSA, provided liquidated damages under the

ADEA “only in instances of willful violations” indi-

cates that more than a mere showing that age was a

factor in an employment decision is required before

liquidated damages may be awarded. Thus, in con-

trast to the result below, “willfulness” under the

liquidated damages provision should require more

than the mere intent to do the act that gave rise to

12

the violation—it should require a specific and con-

scious intent to violate the Act.

As this Court noted in Spies v. United States, 317

U.S. 492, 497 (1943), “willful, as we have said, is a

word of many meanings, its construction often being

influenced by its context.” Thus, it is not surprising

that the lower courts have reached conflicting conclu-

sions regarding the meaning of the “willful” lan-

guage in Section 7(b). Notwithstanding the varying

results reached by the lower courts, it is submitted

that a “specific intent” standard is most faithful to

the purposes of the legislative scheme enacted by Con-

gress and should be adopted by this Court.

In Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.

1979), the First Circuit had occasion to consider the

meaning of “willfully” under the liquidated damages

provision of the ADEA. The court stated that:

An act is done “willfully” if done voluntarily

and intentionally, and with the specific intent to

do something the law forbids; that is to say, with

bad purpose either to disobey or to disregard

the law. 600 F.2d at 1020 n.27, quoting E.

Devitt & C. Blackmar, Federal Jury Practice

and Instructions § 14.06, at 384 (3d ed. 1977).

Consistent with the approach of the First Circuit

in Loeb v. Textron is the decision of the Seventh Cir-

cuit in Syvock v. Milwaukee Boiler Mfg. Co., Inc.,

665 F.2d 149 (7th Cir. 1981). While pointing out

that a finding of liability under the ADEA could be

established without any showing as to the defendant’s

state of mind, the court correctly observed that “by

allowing liquidated damages only for a ‘willful’ vio-

lation, 29 U.S.C. § 626(b) (1976), Congress did not

intend the doubling of damages to be automatic.”

—— a ee Nt ni

13

665 F.2d at 154-55. The court found support for this

proposition in the legislative history of the ADEA,

stating that:

In fact, the legislative history of the ADEA sug-

gests that the Congressional framers thought

that non-willful discrimination directed towards

an individual was quite possible. Unlike race

discrimination, age discrimination may simply

arise from an unconscious application of stereo-

typed notions of ability rather than from a de-

liberate desire to remove older employees from

the workforce. 665 F.2d at 155. (Emphasis

added).

With regard to the standard for determining will-

fulness under the Act, the Seventh Circuit held that:

The standard for willfulness therefore should

focus on the defendant’s state of mind at the time

the allegedly discriminatory acts occurred. It

must distinguish those situations in which an

employer consciously discriminates against an

employee because of age from those in which the

discrimination is unconscious. The distinction is

just as necessary in disparate treatment cases

as it is when the plaintiff sues on a discrimina-

tory impact theory. We think that a finding of

willfulness should lie only if there is some show-

ing as to the defendant’s knowledge of the il-

legality of his actions. We hold that, in order to

prove willfullness under 29 U.S.C. § 626(b)

(1976), a plaintiff must show that the defend-

ant’s actions were knowing and voluntary and

that he knew or reasonably should have known

that those actions violated the ADEA. 665 F.2d

at 155-56. (Emphasis added and footnotes

omitted).

te

14

The approach of the Seventh Circuit in Syvock,

focusing on the “state of mind” of the defendant,

clearly maintains the “two-tier” approach to “will-

ful” and “non-willful” violations envisioned by Con-

gress. In this regard, the court noted that the show-

ing that the defendant knew or reasonably should

have known that its actions were inconsistent with

the law:

[M]ust clearly be greater than that necessary

for the initial finding of ADEA liability. The

showing must be sufficient to indicate that the

defendant’s discrimination was not unconscious.

In a disparate treatment case, a finding of will-

fullness will generally require some direct evi-

dence of discriminatory intent toward the plain-

tiff or a showing that, at the time of the alleged

discriminatory action, the employer was moti-

vated to discriminate or engaged in a pattern of

discriminating against older employees. 665 F.2d

at 156 n.10 (emphasis added).

Thus, the holding in Syvock® that “direct evidence”

or “compelling circumstantial evidence” of an intent

to discriminate is required in order to award liqui-

dated damages under the ADEA is consistent with

the plain meaning of the statute, the intent of Con-

gress and the First Circuit standard in Loeb.

10 The Syvock standard was cited with approval in Orzel v.

City of Wauwatosa Fire Dept., 697 F.2d 743, 757-59 (7th

Cir.), cert. denied, 104 S.Ct. 484 (1983). In addition, the

“specific intent’ standard was approved after careful discus-

sion in Koyen v. Consolidated Edison Co., 560 F. Supp. 1161,

1165-66 (S.D.N.Y. 1983); see also Whittlesey v. Union Car-

bide Corp., 567 F. Supp. 1320, 1830 (S.D.N.Y. 1988). Both of

these district court cases were decided prior to the Second

Circuit’s decision in the instant case.

15

In the instant case, the Second Circuit held that

“plaintiffs need not prove a specific intent to violate

the ADEA;; it is sufficient to establish that the em-

ployer either knew or showed reckless disregard for

the matter of whether its conduct was prohibited by

the ADEA.” 713 F.2d at 956. Citing no more than

the fact that “TWA was clearly aware of the 1978

ADEA amendments,” id. at 957, the court held TWA

liable for liquidated damages. Liability for double

damages based on such a minimal showing will result

in virtually automatic doubling of damages in ADEA

cases.

B. A Standard That Declines To Require “Specific

Intent” Ignores Congressional Intent to Limit Liqui-

dated Damages To Conscious Violations

In addition to the Second Circuit decision herein, a

number of other lower courts have adopted varying

standards for awarding liquidated damages which

decline to impose a requirement of “specific intent”

to violate the Act. Each of these decisions, however,

fails to consider adequately tha+ a “two-tier” statu-

tory framework for back pay and liquidated damages

was established by Congress precisely in order to pre-

vent an automatic award of liquidated damages. Par-

ticularly in disparate treatment actions, such as the

instant case, the failure of these courts to require a

“specific intent” standard has resulted in the virtual

automatic doubling of damages in direct contraven-

tion of Congressional intent.

A brief review of decisions adopting standards for

“willful” violations in the absence of a specific intent

to violate the Act clearly demonstrates the problems

associated with ‘such approaches. In Wehr v. Bur-

16

roughs Corp., 619 F.2d 276, 283 (3d Cir. 1980), the

Third Circuit stated that:

[We conclude that Congress did not intend to

restrict the meaning of “willful” . . . to inten-

tional violations of the ADEA. It is sufficient

to prove that the company discharged the em-

ployee because of age and that the discharge was

voluntary and not accidental, mistaken, or inad-

vertent. In our view, it would also be sufficient

to prove that the discharge was precipitated in

reckless disregard of consequences.

Thus, the Third Circuit standard for willfulness does

not require a “specific intent” to violate the Act and

allows willfulness to be shown by a reckless disregard

of the consequences of the defendant’s action. Such a

standard is inconsistent with common meanings of

the term “willful” and is likely to result in the nearly

automatic award of liquidated damages, since it fails

to focus on the state of mind of the defendant at the

time of the violation.”

In Spagnuolo v. Whirlpool Corp., 641 F.2d 1109,

1113-14 (4th Cir.), cert. denied, 454 U.S. 860 (1981),

11 The Third Circuit’s standard also is inconsistent with its

own definition of “willingfulness” established in the context

of the Occupational Safety and Health Act of 1970, 29 U.S.C.

§ 651, et seq., where the court stated that:

Wililfulness connotes defiance or such reckless disregard

of consequences as to be equivalent to a knowing, con-

scious and deliberate flaunting of the Act. Willful means

more than merely voluntary action or omission—it in-

volves an element of obstinate refusal to comply. Frank

Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200, 1207 (3d Cir.

1974), aff'd in banc, 519 F.2d 1215 (1975), aff'd on other

grounds sub nom. Atlas Roofing Co. v. OSHRC, 480 U.S.

442 (1977).

gr

re

17

and Crosland v. Chariotte Eye, Ear and Throat

Hosp., 686 F.2d 208, 217 (4th Cir. 1982), the Fourth

Circuit has adopted the standard that “an employer

acts willfully and subjects himself to [liability] if he

knows or has reason to know, that his conduct is gov-

erned by [the Act].” Since nearly all employers will

“know” or “have reason to know” that their conduct

is “governed by the Act,” the approach of the Fourth

Circuit is particularly likely to result in an award

of liquidated damages if used as an instruction to a

jury, even where the defendant’s actions were not

“willful” as that term was intended by Congress and

as it is commonly understood.

In Blackwell v. Sun Elec. Corp., 696 F.2d 1176,

1184 (6th Cir. 1983), the Sixth Circuit determined

that it was not necessary for the plaintiff to show

that a defendant acted with a specific intent to vio

late the Act. 696 F.2d at 1184. Rather, the court

adopted the following standard for demonstrating

“willfulness”’ :

We hold that in order to show willfulness, an

ADEA plaintiff must show that the employer’s

actions were voluntary and intentional. The em-

ployer is not necessarily shielded from liability

because he is unaware of the “implications of

his actions under the Act.” Alternatively, the

plaintiff may receive liquidated damages if he

shows that the employer was reckless in not

knowing that his actions were governed by the

ADEA or that the employer acted in reckless dis-

regard of whether his actions were covered by

the ADEA. 696 F.2d at 1184. (Footnote

omitted).

Although the court in Blackwell stated that “every

showing of intentional discrimination does not entitle

18

the plaintiff to liquidated damages,” id., the failure

of the court to require specific intent virtually man-

dates an award of liquidated damages, even in cases

in which Congress clearly did not intend such awards.

Finally, in Kelly v. American Standard, Inc., 640

F.2d 974 (9th Cir. 1981), the Ninth Circuit noted

that “the award of liquidated damages is in effect a

substitution for punitive damages and is intended to

deter intentional violations of the ADEA.” 640 F.2d

at 979 (emphasis added). Despite this acknowledg-

ment, the court declined to impose a “specific intent”

requirement and found that “an ADEA plaintiff who

establishes a knowing and voluntary violation of the

Act is entitled to liquidated damages.” Id. at 980.

Like the other standards that fail to incorporate a

showing that the ADEA violation was “conscious” or

with the “specific intent” to violate the Act, the Ninth

Circuit standard makes it highly likely that liqui-

dated damages will be imposed without the requisite

showing of “willfulness” that Congress intended.”

In disparate treatment actions, such as the instant

case, the approaches outlined above have resulted in

the nearly automatic imposition of liquidated dam-

12 One commentator has noted the problems associated with

a standard, such as that adopted by the Second Circuit herein,

that does not require proof of “specific intent’ to violate the

Act. The commentator noted correctly that under such a

standard :

[A]n employer would be guilty of a willful violation if

he intended to discharge the employee, even if he did not

mean to violate the Act. Under this construction, virtually

every violation would be willful. Smith & Leggette, Re-

cent Issues in Litigation Under the Age Discrimination in

Employment Act, 41 Ohio St. L. J. 349, 369 (1980).

19

ages where a violation of the Act is found.” For ex-

ample, in awarding liquidated damages in an ADEA

case, the Second Circuit in Goodman v. Heublein,

Inc., 645 F.2d 127, 181 n.6 (2d Cir. 1981), stated

that:

In finding, under proper instructions, that Heu-

blein had denied Goodman a promotion because

of age, the jury necessarily concluded that Heu-

blein’s action was intentional. In a discrimina-

tory treatment case, such as this, an employer’s

action, if taken because of an impermissible fac-

tor such as age, cannot be the result of negli-

gence, mistake, or other innocent reason. On the

other hand, in a discriminatory impact case,

where an employer acts on the basis of some

standard ‘that is shown, in practice, to have a

disproportionate impact on some group identifi-

able by a characteristic such as age, a finding of

liability will not inevitably mean that the em-

ployer discriminated intentionally. (Emphasis

in original).

The Second Circuit reaffirmed its adherence to auto-

matic liquidated damages, at least in disparate treat-

ment cases, in the instant case. 713 F.2d at 956."

13—n Cowen v. Standard Brands, Inc., 572 F. Supp. 1476

(N.D. Ala. 1983), the court found “no material difference

between ‘intentional’ discrimination and ‘willful’ discrimina-

tion,” 572 F. Supp. at 1581, and determined that “as a practi-

cal matter, liquidated damages are virtually automatic if there

is to be any monetary recovery at all by the employee.” /d.

14 The importance of requiring a “specific intent” standard

for liquidated damages and of not automatically awarding

such damages in disparate treatment cases is enhanced by the

continuing debate over the appropriateness of using a “dis-

parate impact” theory in ADEA cases. EEAC concurs with

several scholars who have argued that the disparate impact

doctrine should not be applied in age discrimination cases be-

20

The approaches to liquidated damages in disparate

treatment cases of the First and Seventh Circuits in

Loeb and Syvock are more consistent with the “two-

tier” statutory scheme established by Congress. As

noted above, the Seventh Circuit held in Syvock that

“Tijn a disparate treatment case, a finding of will-

fulness will generally require some direct evidence of

discriminatory intent toward the plaintiff or a show-

ing that, at the time of the alleged discriminatory ac-

tion, the employer was motivated to discriminate or

engaged in a pattern of discriminating against older

employees.” 665 F.2d at 156 n.10. The court rejected

an automatic award of liquidated damages in’ dis-

parate treatment cases, stating that “[w]e find noth-

ing in 29 U.S.C. §626(b) (1976), or in the iegis-

cause the Act prohibits only intentional discrimination, which

is properly analyzed under the disparate treatment theory.

See, e.g., A. Blumrosen, Interpreting the ADEA: Intent or

Impact, in Age Discrimination in Employment Act: A Com-

pliance and Litigation Manual for Lawyers and Personnel

Practitioners 68 (1982); Note, Age Discrimination and the

Disparate Impact Doctrine, 34 Stan. L. Rev. 837 (1982). As

Justice Rehnquist noted in his dissent to the denial cf cer-

tiorari in Geller v. Markham, 635 F.2d 1027 (2d Cir. 1980),

cert. denied, 451 U.S. 945 (1981), “[t]his Court hys never

held that proof of discriminatory impact can establish: a viola-

tion of the ADEA, and it certainly has never saxctioned a

finding of a violation where the statistical evidence revealed

that a policy, neutral on its face, has such a significant impact

on all candidates concerned, not simply the protected age

group.” 451 U.S. 945, 948 (Rehnquist, J., dissenting). If

ADEA cases are limited to intentional discrimination, *he

automatic award of liquidated damages in disparate treatment

cases would wholly undermine the “two-tier” approach to

liquidated damages, contrary to the intent of Congress. In any

event, it is not necessary for the Court to decide herein the

issue of whether the ADEA properly is limited to allegations

of disparate treatment, since this is a disparate treatment case.

21

lative history of the ADEA, to support such a result.”

Jo. at 155." It is submitted that Congress did not

intend that liquidated damages would be awarded

automatically in disparate treatment cases and that

the requirement of a “specific intent” to violate the

Act more accurately refiects Congress’ wishes.

The problems inherent in any approach to liqui-

dated damages that does not require a showing that

the employer specifically intended to violate the Act

are aptly demonstrated by the instant case. Follow-

ing the 1978 amendments to the ADEA, TWA altered

its previous policy regarding the retirement at age

sixty of “flight engineers.” This action was taken by

TWA in a conscious effort to comply with the Act.

In addition, with its revised policy, TWA became the

only trunk airline voluntarily to permit pilots over

age sixty to continue working as flight engineers.

Congress could not have intended liquidated damages

to be awarded in such an instance, where the em-

ployer expressly took steps beyond those taken by its

competitors to insure that it would be in compliance

%* The court stated that simply because the jury did not

accept the employer’s justifications and rather found such

justifications to be a pretext for discrimination did not war-

rant an inference that the employer acted “consciously.” Jd. at

157. In doing so, the court explained that:

Age discrimination resulting from unconscious stereotyp-

ing of an older person’s abilities violates the ADEA al-

though it may not have occurred with the state of mind

necessary to a finding of willfulness.. Yet it is likely that

an employer will attempt to offer a legitimate reason for

its actions at trial to avoid liability in the first instance.

Because the defendant’s trial explanation is not believed

does not mean that its original actions were in fact

consciously discriminatory. I/d.

22

with the law. If liquidated damages can be awarded

under these circumstances, it is clear that the “stand-

ard” of “willfulness” adopted by the Second Circuit

is in effect a “standard” of automatic doubling of

damages in any case where a violation of the Act is

found to exist.

II. A UNION FOUND TO HAVE VIOLATED THE ACT

SHOULD BE HELD ACCOUNTABLE FOR MONE-

TARY DAMAGES

The Second Circuit herein held that the ADEA

“does not permit actions to recover monetary dam-

ages, including back pay, against a labor organiza-

tion.” 713 F.2d at 957. In doing so, the court ignored

the clear intent of Congress to end age discrimination

by both employers and unions and the strong policy

reasons favoring such awards against unions. It is

submitted that a monetary award against unions

found to be in violation of the ADEA is consistent

with the statutory language and purposes of the Act

and will serve the important purpose of deterring

union discrimination.

It is undisputed that labor organizations are pro-

hibited by the ADEA from discriminating on the

basis of age. Section 4(c) of the ADEA, 29 U.S.C.

§ 623(c), expressly makes it unlawful for a labor

organization “to discriminate against . . . any indi-

vidual because of his age.” See also 29 U.S.C. §§ 623

(d) and (e). In addition, the legislative history

clearly is expressive of the intent of Congress to pro-

hibit age discrimination by labor organizations. See,

e.g., 1138 Cong. Rec. 2467 (remarks of Sen. Yar-

borough); 113 Cong. Rec. 34,740 (remarks of Rep.

Perkins) ; 113 Cong. Rec. 34,743 (remarks of Rep.

Kelly) (1967). Thus, there are compelling reasons

$$ me —_ —$——— ee —

23

in the statutory prohibitions and legislative his-

tory of the ADEA for holding unions liable for mone-

tary damages for proven violations of the Act.”

In addition to the legislative history and the provi-

sions of the ADEA prohibiting discrimination by la-

bor organizations, the language of the remedy provi-

sion of the ADEA supports an award of monetary

damages against unions. Section 7(b) of the ADEA,

29 U.S.C. § 626(b), provides in pertinent part that:

In any action brought to enforce this chapter the

court shall have jurisdiction to grant such legal

or equitable relief as may be appropriate to effec-

tuate the purposes of this chapter, including

without limitation judgments compelling employ-

ment, reinstatement or promotion, or enforcing

the liability for amounts deemed to be unpaid

minimum wages or unpaid overtime compensa-

tion under this section.

As noted above, since the legislative history clearly

reveals that an important “purpose” of the Act was

16 In Northwest Airlines v. Transport Workers Union, 451

U.S. 77 (1981), this Court held that an employer had neither

a federal statutory right under Title VII or the Equal Pay Act

nor a federal common law right to contribution from a union

that allegedly bore at least partial responsibility for the statu-

tory violations. That case, however, involved a claim for con-

tribution brought by an employer against a union and is not

instructive of the issue presented in the instant case. In

Northwest Airlines, this Court stated that:

Because we conclude that no right to contribution exists

under either the statute or the federal common law, we

need not decide whether the elements of a contribution

claim have been established in this case. Therefore, we

need not and do not decide the question whether employees

have an implied right of action for backpay against their

unions for violations of the Equal Pay Act. 451 U.S. at

88 n.20.

24

to prevent union discrimination, a monetary award

against union violators logically falls within the lan-

guage of the Act providing for “such legal or equi-

table relief as may be appropriate to effectuate the

purposes of this chapter.”

Although there have been few cases addressing the

issue of union liability for monetary relief under the

ADEA, it is submitted that the reasoning most con-

sistent with the legislative purpose of ending union

discrimination on the basis of age is contained in

EEOC v. Air Line Pilots Ass’n, 489 F. Supp. 1003

(D. Minn. 1980), reversed on other grounds, 661 F.2d

90 (8th Cir. 1981). In that case, the district court

rejected the argument of ALPA that the employer

alone is responsible for monetary awards under the

ADEA. The court first “noted that ALPA has cited

the court to nothing in the legislative history of the

ADEA suggesting unions should be immune from

damages liability, and the court also has found no

such indication in the Act’s legislative history or in

any case law under the Act.” 489 F. Supp. at 1009

n.5. Noting the language of Section 626(b), cited

above, the court stated that “[i]t would not effectuate

the purposes of the ADEA to allow unions to violate

the act without having to be concerned with being

held liable for any resulting monetary damages.” I/d.

(Footnote omitted). In holding the union liable for

monetary damages, the court also relied on “analo-

gous case law under Title VII.” ** Jd.

17 See, e.g., Donnell v. General Motors Corp., 576 F.2d 1292,

1300 (8th Cir. 1978); Allen v. Amalgamated Transit Union

Local 788, 554 F.2d 876, 881 (8th Cir. 1977), cert. denied, 434

U.S. 891 (1977).

25

A monetary award against unions found to have

violated the Act best serves the Congressional intent

of eliminating age discrimination by unions and is

most consistent with decisions under analogous statu-

tory schemes."** Without the likelihood of monetary

liability, there is no effective deterrent to prevent

unions from engaging in unlawful discrimination.”

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

1971), aff'd sub nom. Hodgson v. Baltimore Regional Joint

Board, 462 F.2d 180 (4th Cir. 1972), a case brought under the

Equal Pay Act, the court held that a union that had jointly

violated the Equal Pay Act was liable for back wages due.

In so holding, the court stated that:

If [the union’s] position were correct, a union which had

caused an employer to illegally withhold wages from its

employees would be subject to no more than future re-

straint. Its past violation of the law would go uncorrected

and unpunished ; it could merely be prevented from break-

ing the law in the future. There is no apparent reason

why a union which violated Section 206(d) should be

treated any differently from an employer violator. Equita-

bly, both should be subject to the same type of decree

which in order to give full relief would necessarily in-

clude a provision requiring the payment of wages illegally

withheld or caused to be withheld as well as one prohibit-

ing any future violations of the law. 326 F. Supp. at 373.

This reasoning in an analogous situation under the Equal Pay

Act is equally persuasive in the instant ADEA case.

19 The importance of providing “incentives” for unions to

comply with the law was recognized last term in a different

context in Bowen v. U.S. Postal Service, 103 S.Ct. 588, 597

(1983), where this Court noted that:

In the absence of damages apportionment where the de-

fault of both parties contributed to the employee’s injury,

incentives to comply with the grievance procedure will be

diminished.

See also Vaca v. Sipes, 386 U.S. 171 (1967).

26

Given the Congressional intent to prohibit such dis-

crimination, the language of Section 626(b) itself,

and the need for such a deterrent to unlawful dis-

crimination, it is submitted that a union that has en-

gaged in unlawful discrimination under the ADEA

should be held liable for monetary damages.”

CONCLUSION

For the foregoing reasons, it is submitted that the

decision of the Second Circuit herein should be re-

versed.

Respectfully submitted,

ROBERT E. WILLIAMS

DouGLas S. MCDOWELL

THOMAS R. BAGBY

McGUINEsS & WILLIAMS

1015 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment

Advisory Council

May 17, 1984

20In Neuman v. Northwest Airlines, 28 FEP Cases 1488

(N.D. Ill. 1982), the court held that a plaintiff was not entitled

to recover monetary damages from ALPA under the ADEA.

In doing so, the court relied principally on decisions under the

FLSA and failed to accord appropriate weight to the legislative

history of the ADEA, the language of Section 626 itself and

the need for an effective deterrent to union discrimination.

It is submitted that the decision in EEOC v. Airline Pilots

Ass’n is more consistent with the intent of Congress and

should be endorsed by this Court.