Amicus Curiae Brief — Walters v. Metropolitan Educational Enterprises, Inc.

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Nos. 95-259 & 95-779 MAY 29 1996

IN THE | noo

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Supreme Court of the United States

OCTOBER TERM, 1995

DARLENE WALTERS and EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

. Petitioners,

METROPOLITAN EDUCATIONAL ENTERPRISES, INC.

and LEONARD D. BIEBER,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

JONATHAN P. HIATT

815 16th Street, N.W.

Washington, D.C. 20006

MARSHA 8S. BERZON

177 Post Street

San Francisco, CA 94108

VIRGINIA A. SEITZ

LAURENCE GOLD *

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036-5398

(202) 833-9340

* Counsel of Record

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

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TABLE OF CONTENTS

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SUMMARY OF ARGUMENT ........ Silisaiasptinedsinaiacaasiaiaa

ARGUMENT

CONCLUSION

Page

TABLE OF AUTHORITIES

CASES Page

Consolidated Bearings Co. v. Ehret-Krohm Corp.,

913 F.2d 1224 (7th Cir. 1990) .............00000000...... 6

Eisenberg v. Insurance Co. of North Amer., 815

F.2d 1285 (9th Cir. 1987) ....................20-.-..0000000+. 6

McKnight v. General Motors Corp., 908 F.2d 104

(7th Cir. 1990), cert. denied, 499 U.S. 919

CRB) ncocecseccecccssussnscocnvnntonssntesstaiiiiiaman 6

Pioneer Investment Services Corp. v. Brunswick

Assoc. Ltd. Partnership, 507 U.S. 380 (1993).... 5

Pipefitters v. United States, 407 U.S. 385 (1972)... 3, 15

EEOC v. Commercial Office Products Co., 486 U.S.

ROT CID eneccnccccrsccsesccsisnserntionnndsaiensiianenne 8

EEOC v. Metropolitan Educational Enterprises,

Inc., 60 F.3d 1225 (7th Cir. 1995) .................... 4,7

Vogel v. WMATA, 533 F.2d 13 (D.C. Cir. 1976) .... 6

LEGISLATIVE MATERIAL

tk 3 Pa sncesennsiediaeniiaanall passim

BED Cepmnde, TRRBe occecccsceccvnccsstcccsestecsssammunsiaaaeeee 10

H. Rep. No. 92-238, 1st Sess. (1971) ..................... 10

S. Rep. No. 92-415, 1st Sess. (1971) .............0-..-.......... 10

S. Rep. No. 103-3, 1st Sess. (1993)... 15

MISCELLANEOUS

First Annual Digest of Legal Interpretations of

Title VII of the Civil Rights Act of 1964 (1966)..

Restatement Second Agency §§ 117, 118 —..............

3 EEOC Compl. Man. (BNA) (Apr. 20, 1990)......

IN THE

Supreme Court of the United States

OcTOBER TERM, 1995

Nos, 95-259 & 95-779

DARLENE WALTERS and Equat EMPLOYMENT

OPPORTUNITY COMMISSION,

7 Petitioners,

METROPOLITAN EDUCATIONAL ENTERPRISES. INC.

and LEONARD D. BieBer,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE AMERICAN FEDERATION OF

LABOR AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

The American Federation of Labor and Congress of

Industrial Organizations (“AFL-CIO”), a federation of

75 national and international unions with a total mem-

bership of approximately 13,000,000 working men and

women, files this brief amicus curiae with the consent

of the parties, as provided for in the Rules of this Court.

SUMMARY OF ARGUMENT

|. Since 1966, the Equal Employment Opportunity

Commission (“EEOC”) has read Title VII's definition

of employer—a person that “has fifteen or more em-

ployees for each working day” for 20 or more weeks in

a year—to cover any person that has 15 or ore em-

plovees “on the payroll and regularly employed during

cach working day over the prescribed period. The court

below, however, read the operative words to require that

an employer have 15 or more employees “physically pres-

ent at work or on paid leave” during each working day

over the prescribed period. All applicable canons of

statutory construction support the Agency's view.

2.a. By its terms, Title VII's employer definition ap-

plies to a person that “has fifteen or more employees for

each working day” for 20 weeks in a year. The ordinary

meaning of these words, established by the law of em-

ployment relations, is that a person “has” another as an

employee continuously between hire and discharge or

quit, and not (as the court below would have it) only

when the employee is physically present or on paid leave.

Not surprisingly then, the lower court’s view also leads

to anomalies, e.g. not covering all employers with 15

employees who work full-time hours in fewer than all

work days in a work week while covering all employers

with 15 part-time employees who are scheduled each

work day.

b. The lower court's concern that the EEOC’s read-

ing of the employer definition would render superfluous

the statutory words “for each working day” is unfounded.

The Agency's interpretation provides a bright-line rule

under which an employee is not counted toward the em-

plover’s total unless she is on the payroll for the entire

work week. The establishment of a bright-line rule of

coverage was an important part of Congress’ purpose for

the employer definition.

c. In three regards, the legislative history of Title

VII fully supports the EEOC’s reading of the employer

definition and nothing in the legislative materials supports

the court of appeals’ posit:

The employer definition is intended to provide a clear

rule of coverage that does not sweep in employers who

had mere employees than prescribed in the statute for

only the smaller part of the year (i.e., employers of sea-

sonal work forces). There is no suggestion of a legisla-

tive intent to draw finer lines based on an employee's

physical presence in the work place for all days or fewer

than all days of a work weck.

Title VII's employer definition was derived from that

of the Unemployment Compensation Act. In 1964, in

defining “employer” under the latter Act, the Internal

Revenue Service long had considered an employee em-

ployed on all days on which she was on the employer's

payroll.

Finally, the small business exemption arose out of

Congress’ solicitude for the intimate. personal tics bind-

ing employer and employee in businesses with a small

work force. The EEOC’s reading of the employer defini-

tion respects the point of the small business exemption

without unduly undermining Title VII's broad purpose of

eliminating employment discrimination: the lower court's

reading does not further the former and undermines the

latter.

d. This is, moreover, one of the rare cases in which

an action of a later Congress throws a “cross light” on

the action of an earlier Congress, see Pipefitters v. United

States, 407 U.S. 355. 412 (1972). The 1993 Congress.

in enacting the Family and Medical Leave Act

(“FMLA”). modeled its employer definition on Title

VII's. And, the 1993 Congress stated in the legislative

history that the FMLA employer definition should be in-

terpreted as the EEOC and the majority of courts had

interpreted Title VII's employer definition to count to-

wards an employer's total all employees on the payroll.

This post-enactment history, in combination with Title

VII's own legislative history, confirms the correctness of

the EEOC’s reading of Title VII's employer definition.

ARGUMENT

|. Title VII of the Civil Rights Act of 1964 defines

an employer as a person that “has fifteen or more em-

ployees for each working day in each of twenty or more

calendar weeks in the current or preceding calendar

year.” 42 U.S.C. § 2000e(b).

The Equal Employment Opportunity Commission

(“EEOC”), the Agency charged with administering and

enforcing Title VII, in its turn, has determined that

“(t]he term ‘employees for each working day’. . . refers

to persons on the payroll and regularly employed, not the

number of persons at work on any given day.” First

Annual Digest of Legal Interpretations of Title VII of

the Civil Rights Act of 1964 2 (1966) (citing General

Counsel Opinion dated May 11, 1966).’

The court below disagreed, holding that only a person

that has fifteen or more employees “physically present

at work or on paid leave for each working day of twenty

weeks in a year” is a Title VII “employer.” See EEOC

v. Metropolitan Education Enterprises, Inc., 60 F.3d

1225, 1227 (7th Cir. 1995) (emphasis supplied). Metro-

politan Education Enterprises did not, and the court be-

low accordingly dismissed this case for lack of subject

matter jurisdiction.

Every relevant statutory interpretation factor points to

the conclusion that the EEOC’s reading of Title VII

could not be more right and the Seventh Circuit’s could

not be more wrong.

1 See also EEOC Policy Guidance N-915-052, Whether part-time

employees are employees within the meaning of §701/(b) of Title

VII and §11(b) of the ADEA, 3 EEOC Compl. Man. (BNA)

N :3311-N :3316 (Apr. 20, 1990) (reprinted in Pet. App. 30a-40a).

2.a. We begin the analysis by returning to the exact

words of Title VII's “employer” definition—any person

that “has fifteen or more employees for each working day

in each of twenty or more calendar weeks in the current

or preceding calendar year.” Section 2000e(b) (em-

phasis supplied ).

The EEOC reads the critical words—a person that

“has .. . [an] employee[]”"—to mean a person that hires

another person as an employee to work on a regular

basis where there has not been a discharge or a quit.

On this reading, the term “has” is understood to refer to

a continuous relationship that begins with an agreement

to do work as an employee and ends with a termina-

tion of that agreement; so long as that relationship

continues, the first person “has” the second person as an

employee on each and every intervening day.

The Seventh Circuit reads the operative statutory words

to mean a person that suffers another person to do work

as an employee on a particular day or to take paid leave

on that day. On this reading, the term “has” is under-

stood to refer to a series of separate, discrete transac-

tions, each consisting of a day on which one person

agrees that another person is to do work as an employee or

is to be paid as if she did such work—and each severable

from non-work days during which the former does not

have the latter as an employee.

“Congress intends the words in its enactments to carry

‘their ordinary, contemporary, common meaning.” Pio-

neer Investment Services Corp. v. Brunswick Assoc. Ltd.

Partnership, 507 U.S. 380, 388 (1993) (quoting Perrin

v. United States, 444 U.S. 37, 42 (1979)). The estab-

lished set of understandings that determine when a

person “has” an employee is provided by the law of em-

ployment relations. That law supports the EEOC’s deter-

mination that regular employment relationships exist con-

tinuously between hire and discharge or quit and negates

the Seventh Circuit’s notion that, between a hire and a

discharge, regular employment relationships exist only in

fits and starts.

Most obviously, an employee under contract for a

term is deemed to remain in an employment relationship

for that term, absent resignation, death, disability, or

discharge under the contract. See, e.g., Eisenberg v.

Insurance Co. of North Amer., 815 F.2d 1285 (9th Cir.

1987); see also Restatement Second Agency §§ 117,

118.° The law does not treat the relationship of employ-

ment for a term as one which terminates at the end of

each employee work day and recommences with her next

work day.

The same is true of the relationship of employment at

will, in which the employee works only as long as the

employer and employee please. The established employ-

ment law in this regard was recentiy set out in an opinion

of the Seventh Circuit (overlooked by the panel below)

where Judge Posner explained: “Employment at will is

not a state of nature but a continuing contractual rela-

tion.” McKnight v. General Motors Corp., 908 F.2d

104, 109 (7th Cir. 1990) (emphasis supplied), cert. de-

nied, 499 U.S. 919 (1991). “A contract for employment

at will may end abruptly but it is a real and continuing

contract nonetheless, not a series of contracts each a

day—or a minute—long.” /d.

In common parlance, then, whether a person is em-

ployed for a term or at-will, the employer “has” that

person as an employee so long as a regular employment

relationship continues, both on days that the employee is

physically present at work and on days that the employee

is absent.

2 Indeed, when such an employee continues to work after his

or her contract expires, it is presumed that the contract (i.e., the

employment relationship) has been renewed. See, e.g., Consolidated

Bearings Co. v. Ehret-Krohm Corp., 913 F.2d 1224 (7th Cir.

1990) ; Vogel v. WMATA, 533 F.2d 13 (D.C. Cir. 1976).

This point is reinforced by the anomalies created by

the lower court’s peculiar version of the employment rela-

tionship. Under that view, all members of the class of

persons who do business the traditional 5 days a week

and who employ 15 or more employees, each of whom

works the traditional 5-days-a-week-8-hours-a-day sched-

ule, are Title VII “employers.” But only some members

of the following classes of persons employing 15 or more

employees, each working on a 40 hour a week basis, are

Title VII employers: Persons employing more than 15

full-time employees who work fluctuating compressed

work weeks (e.g., four 10-hour days) and persons doing

business seven days a week (instead of the traditional

five) employing more than 15 full-time employees who

work fluctuating 5-day work weeks. In both instances,

while the employer gets the benefit of a traditional 15

full-time employee complement, on any given working

day less than 15 employees may be present or on paid

leave.

By ihe same token, on the Seventh Circuit's view, all

persons employing i5 or more part-time employees who

work 20 hours a week throughout the employer's five-

working-days week would be covered by Title VII, while

only some persons employing 15 or more part-time em-

ployees who work 20 hours a week on a fluctuating

schedule would be covered.

In contrast, the EEOC’s reading of Title VII's “em-

ployer” definition—which rests on the ordinary legal un-

derstanding of the employment relation—properly treats

all employers with the same number of regular employees

on the payroll as the same for Title VII coverage

purposes.

b. The court below refused to defer to the EEOC’s

interpretation of the text of section 2000e(b), in part

because that court believed that it “would render the

words ‘for each working day’ superfluous.” 60 F.3d at

1227. But that is not so.

Under the EEOC’s reading of section 2000e(b), an

employer “has” an employee for a working day only if

she is on the payroll that day. The result is that an em-

ployee who is hired on Tuesday is not on Monday’s

payroll and is not counted for the week in question; by

the same token, an employee who is discharged on Thurs-

day is not on Friday’s payroll and is not counted for the

week in question.

On the EEOC’s reading, then, Title VII’s “employer”

definition differs significantly from, for example, a pro-

vision counting an employee towards the employer’s total

if she works on “most” working days in a week. The

former establishes a particular bright-line rule for deter-

mining coverage while the latter does not. And, as we

show below, enactment of a bright-line rule of coverage

was of critical importance to Congress in 1964.

For all these reasons, the EEOC’s reading of the phrase

“for each working day” is more than reasonable and there-

fore is entitled to a deference that it did not receive from

the lower court. See EEOC v. Commercial Office Prod-

ucts Co., 486 U.S. 107, 115 (1988).*

c. The legislative history of Title VII buttresses the

EEOC’s interpretation of section 2000e(b) and under-

mines that of the lower court.

The House bill, H.R. 7152, defined the term “em-

ployer” as a “person engaged in an industry affecting

commerce who has 25 or more employees.” That bill

was taken directly to the floor of the Senate where an

83-day debate ensued. The legislative stalemate was

eventually broken by a Senate bipartisan leadership com-

promise bill making substantial changes in H.R. 7152,

including changes to the definition of “employer.” The

3“fT}t is axiomatic that the EEOC’s interpretation of Title

VII, for which it has primary enforcement responsibility, need

not be the best one by grammatical or any other standards.

Rather the EEOC’s interpretation of ambiguous language need

only be reasonable to be entitled to deference.” /d.

compromise was embodied in Senate substitute amend-

ment No. 656—the Dirksen-Mansfield amendment—and

with few changes, none relevant here, that substitute

amendment became Title VII as enacted into law.

During the course of the Senate debate, two issues re-

lated to the definition of “employer” were aired. The

first concerned the number of employees that would be

required to trigger Title VII coverage. The Senate pro-

ponents of the House bill—without deviating from their

belief that employment discrimination by smaller employ-

ers is morally wrong and harmful to the economy *—

defended the provision exempting employers with fewer

than 25 employees on the pragmatic ground that

“when [businesses] get above 25, they get into some

reasonable degree of gross product in terms of income or

output or salaries or goods or services. They also lose

most of whatever intimate, personal character they might

have had.” 110 Cong. Rec. 13088. In contrast, the

House bill’s opponents sought to press the exemption’s

logic further:

[I]n a small business which employes (sic) 30 or 40

persons, the personal relationship is predominant. . . .

{[Wjhen a small businesman who employs 30 or 25

or 26 persons selects an employee, he comes very

close to selecting a partner; and when a businessman

selects a partner, he comes dangerously close to the

situation he faces when he selects a wife. [/d. at

13085 (Sen. Cotton). ]

4 See, e.g., 110 Cong. Rec. 13090 (“such discrimination is

wrong[.}] [T]here is no division of opinion among us on that

point”) (Sen. Case); id. at 13091 (“[e]very bit of evidence we

have in connection with fair employment practice laws indicates

that such statutes not only are good law, good morals, and good

labor-management practice, but also good economics”) (Sen.

Humphrey); id. at 13088 (“[t]here is considerable evidence to

demonstrate that permitting people to be hired on the basis of

their qualifications not only helps business, but also improves the

total national economy”) (Sen. Humphrey).

In the event, the 1964 Civil Rights bill set the exemption

number at 25 employees; and, in 1972, Congress

amended the definition of employer in Title VII to lower

the statutory threshold for coverage to employers of 15

or more employees to further its principal goal of com

bating employment discrimination.”

The second employer definition issue concerned the sit-

uation of an employer with a seasonal work force that

fluctuates above and below the numerical threshold set by

the statute over the year. Senator Dirksen, the Republican

minority leader whose support was essential to break the

filibuster led by the Southern Democrats, raised this issue

in a memorandum he submitted to the Senate proponents

of the House bill and introduced into the Congressional

Record. Relevant here, Senator Dirksen made the follow-

ing inquiry:

5 See, e.g., S. Rep. No. 92-415, Ist Sess. 8 (Oct. 28, 1971) (stat-

ing, in explaining decision to expand coverage, that “[t|he Com-

mittee agrees with the Chairman of the EEOC that discrimination

should be attacked wherever it exists, and recognizes that small

establishments have frequently been the most flagrant violators

of equal employment opportunity”) ; H. Rep. No. 92-238, Ist Sess.

20 (June 2, 1971) (“[t]he committee feels that discrimination in

employment is contrary to the national policy and equally in-

vidious whether practiced by small or large employers”). While

Congress retained a limited small business exemption out of a

continued “concern{] with the impact of additional federal regula-

tions on smaller businessmen,” 118 Cong. Rec. 4907 (Sen. Williams,

Chief Sponsor of Title VII Amendments in the Senate), the ex-

panded coverage of Title VII—and the correlative shrinkage in the

small business exemption—reflects increased emphasis on Title

VII's broad purpose of eliminating employment discrimination and

decreased emphasis on the countervailing free association rights of

small businesses, see also id. at 3972 (Sen. Williams) (“the bill

broadens its coverage to reach the employers of 15 or more and

unions with 15 or more members. I will say that it is a great ad-

vance. Ideally, I think, it should apply to all, but we have made

that decision, and for only practical reasons have we made it em-

ployers of 15 or more and unions with 15 or more members. A

man or woman who has been discriminated against has been

wronged just as much whether he or she is an employee in a

little shop with three or four or one with fifteen or more”).

[A]ssume if you will the operation of a medium-size

orchard. For 11 1/2 months of the year the em-

ployer has no employees. But during 2 weeks of the

year he employs 100 pickers. Is he to be subjected

to the provisions of this title? What of summer or

winter resort operations where employment is only

for 2 or 3 months at the most. Are they to be cov-

ered by this title? Certainly we have no clear state-

ment by which an employer can be guided. Is this

the way to legislate? [110 Cong. Rec. 7216-17.]

Senator Clark responded that under the bill as then

drafted, “[e]mployers whose staffs fluctuate seasonally

are covered by the act at times when the number of

employees exceeds the minimum figure; they are not

covered when it is below the minimum.” /d. at 7217.

Not surprisingly, the Dirksen-Mansfield substitute

amendment responded to Senator Dirksen’s concern by

adding to the definition of “employer” the language at

issue here—“for each working day in each of twenty or

more calendar weeks in the curent or preceding calendar

year.” The office of that language was to preclude Sen-

ator Clark’s approach whereby employers would move in

and out of coverage on a weekly basis and to do so by

providing the “clear statement” on coverage that Senator

Dirksen sought. Senator Humphrey explained:

[The amendment] provide[s] needed certainty as to

coverage of employers where the number of em-

ployees fluctuates above and below the figure requi-

site to application of the title. Coverage is limited

to those employers who employ more than the re-

quired minimum number of employees for at least 20

weeks out of the year. [110 Cong. 12722 (Sen.

Humphrey ). |

And, Senator Dirksen added:

{W]e undertook to provide for seasonal workers, by

taking the language out of the Unemployment Com-

pensation Act, to the effect that the definition of the

term “employer” would apply to 25 or more who

were employees for each working day, in each of

twenty or more calendar weeks. [110 Cong. Rec.

13087.] °

The foregoing teaches three pertinent lessons:

First, the point of the employer definition is to pro-

vide a clear rule of coverage, and one that does not

sweep into coverage employers who employ more than

the statutory number of employees for only the smaller

part of a year. It was no part of Congress’ purpose to

draw fine lines based on whether a regular employee is

physically present in the workplace each and every day of

a particular work week or three days of that week. The

congressional materials thus reinforce the canon of con-

struction that calls for reading Title VII’s employer defini-

tion according to the law’s ordinary understanding of the

employment relationship.

Second, as Senator Dirksen stated, the “employer”

definition of Title VII was derived from the Unemploy-

ment Compensation Act. While the path from the un-

employment law to Title VII is in many ways a meander-

ing one, at least one link is plain and direct—in 1964, and

during the nine years preceding, the Internal Revenue

Service, in defining the term “employer” in the Unem-

ployment Insurance Act, considered an employee to be

employed on all days of any week that she was on the

employer’s payroll. Thus, employees who worked full-

time hours on fewer than all working days in a week

were counted, see Revenue Ruling 55-38 (stating that

employees who “because of the long daily hours of em-

ployment . . . are granted | or 2 days of absence each

week” are to be counted; “[i]f the employer-employee

relationship exists, it is immaterial that the employee

performs no physical service for the employer on certain

® See also 110 Cong. Rec. 13088 (Sen. Dirksen) (in defining

employer, we “put a sensible figure on the bill, and then nailed it

down to make a proper exception for seasonal employees’’).

days of the week”). Also counted were employees who

worked part-time hours during fewer than all days of the

week, id. (stating that “housewives [who] work half days

3 days per week” are to be counted; “[a]n employee who

has worked for an employer only 3 days in each week

for a number of years is considered to be ‘in employment’

on the remaining days of the week”).

The legislative reference to the Unemployment Com-

pensation Act thus strongly supports the EEOC’s reading

of section 2000e(b).

Third, and finally, the legislative materials show that

Title VII's small business exemption was in large part the

product of a congressional solicitude for the intimate,

personal ties that bind an employer and its employees

in a small business. Congress defined that threshold in

terms of the number of employees on the judgment that,

as the size of the workforce increases, the potential for,

and likelihood of, such intimacy—and hence the cor-

responding justification for an exemption from Title

Vil—decreases.

The EEOC’s reading of section 2000e(b) respects the

point of the small business exemption without unduly un-

dermining the policy interest represented in Title VII's

antidiscrimination provisions. Employer-employee _ inti-

macy is, in general, a function of the total number of

employees working in an enterprise, and not a function of

how many employees are physically present on a working

day. Indeed, the policy concerns underlying the small busi-

ness exemption are far less likely to be implicated in the

case of an employer with a substantial number of part-time

employees. As a general matter, the relationship between

an employer and part-time employees is more tenuous

and less intimate than its relationship with core em-

ployees.

A large reason why employers hire part-time em-

ployees—rather than full-time employees—is to avoid

the commitments associated with the full-time employ-

ment relationship and to secure employee services at a

lower cost (lower pay and fewer fringe benefits such as

health insurance and pension benefits) than those en-

tailed in hiring a core, full-time worker. Precisely be-

cause the employer makes a lesser investment in and

commitment to a part-time employee, the intimacy of the

association is correspondingly less. See, e.g., duRivage,

Virginia L., ed. New Policies for the Part-Time and Con-

tingent Workforce, Economic Policy Institute Series 7-8,

10, 21-24, 73, 91-94 (1992).

In sum, Title VII's protective purpose—to eliminate

employment discrimination—is compromised by not

counting both regular full-time employees and regular

part-time employees who work fewer than all working

days in a week in determining whether the statutory

threshold for employer coverage under Title VII is satis-

fied. Equally to the point, neither the broad purpose of

Title VII nor the limited, countervailing purpose of the

small business exemption—to protect legitimate free as-

sociation interests of small operators—is served by the

lower court’s reading of the “employer” definition.

c. The foregoing is, we believe, dispositive. But there

is an additional weight in the scale on the side of the

EEOC’s interpretation of section 2000e(b). In narrow

circumstances, the Court considers the actions of a later

Congress to “ ‘throw a cross light’” on a legislative act

of a previous Congress. See Pipefitters v. United States,

407 U.S. 385, 412 (1972).

In Pipefitters, the issue was the meaning of the 1947

enactment of section 610 of the Federal Election Cam-

paign Act. In construing that enactment, the Court took

into account the 1971 amendment to that provision

passed “to codify the court decisions interpreting [and

the legislative history explicating] section 610.” 407 U.S.

at 410. In so doing, the Court stated:

The consensus that has now been captured in ex-

press terms in § 610 cannot, of course, by itself con-

clusively establish what Congress had in mind in

1947. But it does “throw a cross light” on the earlier

enactment that, together with the latter's legislative

history, demonstrates beyond doubt the correctness

of the parties’ common ground interpretation of

§$ 610. [/d. at 411-12 (quoting Michigan Nat. Bank

v. Michigan, 365 U.S. 467, 481 (1961) (quoting

L. Hand, J.) ).]

Similarly here, Congress recently enacted a statute, the

Family and Medical Leave Act (“FMLA”), that tracks

Title VII's definition of employer (except that an em-

ployer is required to “employ” 50 instead of !5 employees

“for each working day” to trigger coverage). The legisla-

tive history of the FMLA indicates that Congress intended

the provision defining employer to have the meaning that

the EEOC and a majority of courts have already given to

it in the Title VII context. The Senate Report stated that

the FMLA’s “employer” definition

parallels language used in Title VII of the Civil

Rights Act of 1964 and is intended to receive the

same interpretation. As most courts and the EEOC

have interpreted the language, “employs . . . em-

ployees for each working day” is intended to mean

“employ” in the sense of maintain on the payroll.

It is not necessary that every employee actually per-

form work on each working day to be counted for

this purpose.” [S. Rep. No. 103-3, Ist Sess. 21-22

(1993).}

The “cross light” that the legislative history of the

FMLA sheds on section 2000e(b), “together with the

latter's legislative history, demonstrates beyond doubt the

correctress” of the EEOC’s reading of that provision. Cf.,

Pinefitters, 407 U.S. at 411-12.

CONCLUSION

For the above stated reasons as well as those stated in

the Brief for the Equal Employment Opportunity Com-

mission, the decision below should be reversed.

Respectfully submitted,