Amicus Curiae Brief — National Railroad Passenger Corporation v. Morgan

No. 00-1614 Ni Ss

IN THE

Supreme Court of the United States

NATIONAL RAILROAD PASSENGER CORPORATION,

Petitioner,

v:

ABNER MORGAN, JR.,

Respondent.

On Wait oF CERTIORIARI TO THE

UniteD STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Brief For The Lawyers’ Committee For Civil Rights Under

Law; The National Association For The Advancement Of

Colored People; The Minority Business Enterprise Legal

Defense And Education Fund, Inc.; Now Legal Defense And

Education Fund; The National Women’s Law Center;

The National Partnership For Women And Families;

The American Jewish Congress; AARP; And The National

Employment Lawyers Association As Amici Curiae In

Support Of Respondent

JoHN A. PAYTON MERRILL C. GODFREY

Gary T. JOHNSON MarK J. TANNEY

Co-Chairs SHEARMAN & STERLING

NorRMAN REDLICH 801 Pennsylvania Ave., N.W.

Trustee Suite 900

BARBARA R. ARNWINE Washington, D.C. 20004

THOMAS J. HENDERSON* (202) 508-8000

LAWYERS’ COMMITTEE FOR

Civit RiGHts UNper Law

1401 New York Ave., N.W.

Washington, D.C. 20005

(202) 662-8600 * Counsel of Record

(Additional Counsel Listed on Inside Cover)

SBEST AVAILABLE COPY

DeNNIS COURTLAND Hayes

NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE

4805 Mt. Hope Drive

Baltimore, MD 21215

FRANKLIN M. LEE

Minority Business ENTERPRISE LEGAL

DEFENSE AND EDUCATION FUND

419 New Jersey Avenue, SE

Washington, D.C. 20003

Marcia D. GREENBERGER

JupitH C. APPLEBAUM

NATIONAL WOMEN’S Law CENTER

11 Dupont Circle, Suite 900

Washington, D.C. 20036

JupitH L. LicHTMAN

JoceLyn C. Frye

NATIONAL PARTNERSHIP FOR

WomeN & FAMILIES

1875 Connecticut Avenue, NW

Suite 650

Washington, D.C. 20009

Marc STERN

AMERICAN JEWISH CONGRESS

15 E. 84" Street

New York, NY 10028

PauLa A. BRANTNER

NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION

44 Montgomery Street, Suite 2080

San Francisco, CA 94104

Attorneys for Amici Curiae

QUESTION PRESENTED

Whether a pattern of discriminatory acts or practices

outside of Title VII's charge-filing period is actionable and

provides a basis for recovery as a continuing violation, where

one or more related acts occur within the charge-filing period.

ii | iii

TABLE OF CONTENTS Contents

Page Page

Question Presented .............ccceeeceeeees i II. Title VII’s Explicit Provisions Affording

Relief Should Not Be Undercut By An

POT osc cncccddscdaditetewanesoun ii Implied Limitation Based On The Charge-

PRUE ccc ccccccéeccosecceces 22

Table of Cited Authorities ..............0.000.: iv

A. By Its Plain Terms, Section 706(g)(1)

Statement of Interests of Amici Curiae .......... l Provides For the Award of Monetary

Relief Covering A Period Longer Than

RRO ns cicccsvctissatvtadees 4 the Statutory Filing Period. .......... 23

Summary of Argument .................-.-4+5 4 | B. In Providing For Compensatory and

Punitive Damages Uncer Title VII,

RES Fon vids ossdiadtistcnoxten melee 7 Congress Chose a Detailed Schedule of

Limitations Drastically Different From

I. A “Continuing Violation” Accrues At The The Charge-Filing Period. .......... 25

Time Of The Last Asserted Act In The Pattern

GUID, onda icndondctacasccce 7 Il. The Existing Continuing Violation Doctrine

Comports With Legislative Intent, Fosters

A. The Continuing Violation Doctrine Judicial Economy, And Promotes Equity. .. 26

WOE cs ccicndctccuncadass 7 A. The Established Continuing Violation

Doctrine Endorsed and Facilitated by

B. There Is No Foundation In Either Title ~--- sng encanto eemtina beens

VII Or In This Court’s Cases forthe | &— Vile nett tenner reereenerererenenens 26

Advanced By Petitioner And

WooUMMeSORian sscrssqcereeenees 2 B. Grafting A “Notice” Limitation Onto

Section 706(e) Would Encourage

C. The EEOC’s Own Rule, To Which This Multiple, Premature Lawsuits. ....... 29

Court Owes “Great Deference,” Is

Identical to the Rule Applied By the SED cas patbcdabasedaebtetectececccose 30

Court of Appeals. ...............0.: 20

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Abramson v. University of Hawaii, 594 F.2d 202

GREE cdcccaccnecusdtcocccsweietiaastellss 7

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)

ndhedobbbe ns cbbareecvededidpakaaeesed 24, 27, 28

Anisman v. O'Neill, 2001 WL 402493 (E.E.0.C.

PE SERMED whecdanteescsebedechabbaseas 21

Auciello Iron Works, Inc. v. N.L.R.B., 517 U.S. 781

POU Shands dceckdcduen dodsasavindeetaees 20

Bazemore v. Friday, 478 U.S. 385 (1986) ........

jnedbadneceecduasevees 9, 10, 11, 13, 17, 18, 23, 29

Berry v. Board of Supervisors, 715 F.2d 971 (Sth Cir.

SPEED ‘bc Secddonns cund phabtesbucecdescenes 14, 17

Cardenas v. Massey, No. 00-5225, 2001 WL 1230325

Geen GE Ca cceccewcddcsdctobesdudess 11

Chauffeurs, Teamsters & Helpers, Local No. 391 v.

Terry, 494 U.S. 558 (1990) ............00005. 19, 20

Delaware State College v. Ricks, 449 U.S. 250 (1980)

pecdethonté eniudusedecesnncet 7, 8, 11, 13, 17, 23

Faragher v. City of Boca Raton, 524U.S.775 (1998)

vocedanesbkeqedndds bknns chien Gubetaen 27, 28, 29

v

Cited Authorities

Page

Franks v. Bowman Transportation Co., 424 U.S. 747

aiid tht gign beats 60s éseVeteneouss 24

Galloway v. General Motors Service Parts Operations,

78 F.3d 1164 (7th Cir. 1996) ............. 14, 15, 16

Gregory v. Ashcroft, 501 U.S. 452 (1991) ........ 21

Griggs v. Duke Power Co., 401 U.S. 424(1971) ..20, 27

Hammontree v. N.L.R.B., 925 F.2d 1486 (D.C. Cir.

DE dachnaGadatekeasebks suvtuetess <eees 20

Hanover Shoe, Inc. v. United Shoe Machinery Corp.,

ee PEED clic ccc cdeodesecgucucese 19

Havens Realty Corp. -v. Coleman, 455 U.S. 363

Savéaustewebececens 8, 9, 10, 13, 17, 18, 23, 29

Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001) . . . 16, 29

Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997)... 19

Kolstad v. American Dental Ass'n, 119 U.S. 2118

Sc cne tb eee edoabndcpeecedveseses 27

Lorance v. AT&T Technologies, Inc., 490 U.S. 900

i bcecciesvannndbeckesas 7, 8, 11, 13, 17, 18, 23

Lorillard v. Pons, 434 U.S. 575 (1978) .......... 5

Louisiana v. United States, 380 U.S. 145(1965) .. 28

vi

Cited Authorities

Page

Melville Confections, Inc. v. N.L.R.B., 327 F.2d 689

SPE GHE GUE s6oddcesiienesnvestecsesened 20

Miller v. Beneficial Mgmt. Corp., 977 F.2d 834

GRE COED Sodicnceceddduacds dhevtvesce 11

Morgan v. National R.R. Pass. Corp., 232 F.3d 1008

SG ED op da ccedcesdes cdbevcoeusess 4

Pollerd v. EI. Du Pont De Nemours & Co., 121

Pe SPEDE oa ck bs iecSebes Cevasevess 24

Rotella v. Wood, 528 U.S. 549 (2000) ........... 19

Sabree v. United Bhd. of Carpenters and Joiners,

Local 33, 921 F.2d 396 (ist Cir. 1990) ........ 15

Scrivner v. Socorro Indep. Sch Dist., 169 F.3d 969

EGE: EEE odccccatecenecdisduessusnctes 28

Stuart v. General Motors Corp., 217 F.3d 621 (8th

GE cc cocebesedcsnsudecénd Ouabies tec 28

Taylor v. Meirick, 712 F.2d 1112 (7th Cir. 1983) .. 16

United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977)

puesabbddendacteneaseepmedan 8, 10, 11, 13, 17, 23

Statutes:

GBUBA. 6 OGG ce ncvcvcvcesdavies éhente tse we 2

BUSBL. § WG48e ..vicesdaviavecivages 4, 5, 6, 20, 22

vii

Cited Authorities

Page

42 U.S.C. § 19BLaLONS) ... cc cceccccccceecees 26

IE Sate i seco cvccecccosccecccss 16, 29

ee POO OOE, nc cdicccccccccccccccs 4

es ED oc occccsccncesccccscccce 24

Se ED «0 baccccecccvccecceeces passim

42 U.S.C. § 20000-S(eM1) 0... cee eecceeeeees 7,24

42 U.S.C. § 2000¢-5(e)(2) oo... cece eeeeueees 18

42 U.S.C. § 2000e-S(g){1) ........ 6, 18, 20, 22, 23, 24

Se SEO dS eeidcowcctcocsecescs 8

SS ED cecévecceccesesdsecccceces 8

Other Authorities:

29 C.F.R. § 1604.11(f) (1997)... 6. cece eee eee 27

118 Cong. Rec. at 4940, 4941 ............0005. 18

EEOC Compliance Manual § 2-IV.C.2 .......... 21, 23

l

STATEMENT OF INTERESTS OF AMICI CURIAE'

The Lawyers’ Committee for Civil Rights Under Law is

a tax-exempt, nonprofit civil rights legal organization

founded in 1963 by the leaders of the American bar at the

request of President Kennedy, to provide legal representation

to the victims of civil rights violations. Its members include

former Attorneys General, former Assistant Attorneys

General for the Civil Rights Division of the Justice

Department, former Chairs of the Equal Employment

Opportunity Commission, former Secretaries of Cabinet

Departments, law school deans and professors, and many of

the nation’s leading lawyers. Over the last 38 years, the

Lawyers’ Committee and its local affiliates in Boston,

Chicago, Denver, Los Angeles, Philadelphia, San Antonio,

San Francisco, and Washington have represented members

of minority groups and women in hundreds of civil rights

cases.

The National Association for the Advancement of

Colored People (“NAACP”), established in 1909, is the

nation’s oldest civil rights organization. It has state and local

affiliates throughout the nation. The fundamental mission of

the NAACP is the advancement and improvement of the

political, educational, social and economic status of minority

groups; the elimination of racial prejudice; the publicizing

of adverse effects of racial discrimination; and the initiation

of lawful action to secure the elimination of racial bias.

The NAACP has appeared before courts throughout the

nation in numerous civil rights cases concerning employees’

rights to bring claims of employment discrimination.

1. By letter to the Court dated July 26, 2001, the parties

consented to the filing of amicus curiae briefs by any third party in

support of either party. No counsel for any party authored this brief

in whole or in part, and no person or entity other than amici made

any monetary contribution to the preparation or submission of this

brief.

2

The Minority Business Enterprise Legal Defense

and Education Fund, Inc. (“MBELDEF”) is a nonprofit

corporation founded in 1980 by former Maryland

Congressman Parren J. Mitchell. The primary purpose of

MBELDEFEF is to promote legally defensible minority business

opportunity programs that ensure the fair and equitable

participation of minority businesses in the marketplace.

As part of its mission, MBELDEF also pursues litigation

on behalf of minority business enterprises to attack

discriminatory barriers and practices in the marketplace

where the issues are part and parcel to the attainment of

economic parity and full integration of the marketplace. Many

of the lawsuits brought by MBELDEF seek to address

“continuing violations” in the making or enforcement of

contracts under 42 U.S.C. § 1981. Accordingly, MBELDEF

has a strong interest in ensuring that our ability to address

such violations through legal recourse is not diminished.

NOW Legal Defense and Education Fund (“NOW Legal

Defense”) is a leading national non-profit civil rights

organization that uses the power of the law to define and |

defend women’s rights. A major goal of NOW Legal

Defense is the elimination of barriers that deny women

economic opportunities, such as employment discrimination.

In furtherance of that goal, NOW Legal Defense litigates

cases to secure full enforcement of laws prohibiting

employment discrimination, and has participated as an

amicus curiae in many cases before this Court.

The National Women’s Law Center (NWLC) is a non-

profit legal advocacy organization dedicated to the

advancement and protection of women’s rights and the

corresponding elimination of sex discrimination form all

facets of American life. Since 1972, NWLC has worked to

secure equal opportunity in the workplace, including through

the full enforcement of Title VII of the Civil Rights Act of

3

1964 as amended. NWLC has filed numerous amicus curiae

briefs on employment law and civil rights issues.

The National Partnership for Women & Families, a non-

profit, national advocacy organization founded in 1971 as

the Women’s Legal Defense Fund, promotes equal

opportunity for women, quality health care, and policies that

help women and men meet both work and family

responsibilities. The National Partnership has devoted

significant resources to combating sex, race, and other forms

of invidious workplace discrimination and has filed numerous

briefs amicus curiae in this Court and in the federal circuit

courts of appeals to advance the opportunities of women and

minorities in employment.

The American Jewish Congress is an organization of

American Jews committed to the protection of the civil,

economic, political and religious rights of American Jews

and all Americans. It was founded in 1918 and since that

time has continually urged full equality in employment.

AARP is a nonprofit membership organization serving

more than thirty-five million persons age 50 and older that

is dedicated to addressing the needs and interests of older

Americans. One of AARP’s primary objectives is to strive to

achieve dignity and equality in the workplace through

positive attitudes, practices, and policies towards work and

retirement. In pursuit of this objective, AARP has since 1985

filed more than 200 amicus briefs before this Court and the

federal appellate and district courts.

The National Employment Lawyers Association (NELA)

is a voluntary membership organization of more than 3,000

attorney members who regularly represent employees in

labor, employment, and civil rights disputes. NELA is the

country’s only professional membership organization of

4

lawyers who represent employees in discrimination, wrongful

discharge, employee benefit, and other employment-related

matters. NELA has filed numerous amicus curiae briefs

before this Court and the federal appellate and district courts

regarding the proper interpretation and application of

employment discrimination laws.

STATEMENT OF THE CASE

Amici curiae adopt the statement set -m in Respondent’s

brief.

SUMMARY OF ARGUMENT

This case presents questions regarding the proper

application of this Court’s “continuing violation” doctrine

in the context of Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 20006e, et seg. (“Title VII” or “the

Act”), and the Civil Rights Act of 1991, Pub. L. No. 102-

166, § 102, 105 Stat. 1072-1074 (42 U.S.C. § 1981a).

Specifically, the case involves whether discriminatory

conduct outside the charge-filing period in § 706(e) of the

Act, 42 U.S.C. § 2000e-5(e), can be the subject of suit and

recovery, where such conduct is “part of a series or pattern

of discrimination, retaliation, and hostile environment that

started” prior to the charge-filing period, and where one or

more related acts of discrimination occurred within the filing

period. Morgan v. National R.R. Pass. Corp., 232 F.3d 1008,

1017 (9th Cir. 2001).

Amici, in support of Respondent, urge the Court to

reaffirm the established “continuing violation” doctrine by

which Title VII liability reaches patterns of discriminatory

acts or practices that began before, but continued into, the

charge-filing period. Both the Petitioner and the United States

as amicus curiae seek to have this Court eliminate that

5

doctrine, although they do not forthrightly ask the Court to

do so, and although each attempts a different route to the

same result. Amici urge the Court to reject these arguments.’

Petitioner incorrectly characterizes Title VII as

recogniz 2 only “discrete acts” of discrimination, and argues

that the charge-filing period begins and ends separately for

each “discrete act,” such that no discrimination beyond 180

or 300 days is ever actionable. Accordingly, it proposes to

substitute for the existing “continuing violation” doctrine a

concept of “recurring violations.” Jd. at 21 n.7. Petitioner

further suggests that the charge-filing period commences

according to a “notice accrual” rule, by which a claim is

extinguished within 180 or 300 days of an employee’s notice

of a discriminatory act, regardless of whether the pattern of

discrimination continues thereafter. Petitioner would attach

the label “continuing violation” only to conduct that alone is

insufficient to constitute a violation, or could not be

recognized by the employee to be discrimination. While

Petitioner thus argues that damages for violations of the Act

are limited by the 180- or 300-day charge-filing period, it

does not attempt to reconcile its position with the Act’s

express provision authorizing back pay for up to two years

prior to the filing of a charge. Moreover, Petitioner makes

no mention of 42 U.S.C. § 198la, by which Congress

imposed limits on compensatory and punitive damage awards

as it made them available under the Civil Rights Act of 1991.

The United States contradicts Petitioner by correctly

pointing out that notice is irrelevant to the continuing

2. Because of textual similarities between Title VII and other

employment discrimination laws, and because Congress looked to Title

VII as a model in enacting such laws, the outcome of this case likely

will extend well beyond the confines of Title VII. See, e.g., Lorillard v.

Pons, 434 U.S. 575, 584 (1978) (prohibitions of the Age Discrimination

in Employment Act derive in haec verba from Title VII).

6

violation doctrine, which looks instead to whether there is

actionable conduct consistent with the pre-existing pattern

within the charge-filing period. U.S. Br. at 11. But the United

States ultimately, but not explicitly, suggests that the charge-

filing period commences with notice — even notice before

an act of discrimination occurs — and that the continuing

violation doctrine does no more than excuse “prior notice”

as to a violation within the charge-filing period. Thus, it

argues that the continuing violation doctrine has no effect

except that “a Title VII plaintiff may recover for

discrimination that occurs within the charge-filing period

despite having notice of a violation outside the period,” but

then tacks on the distinct assertion “but may not recover for

violations that occurred outside the period.” U.S. Br. at 17.

The United States premises this latter assertion on antitrust

law, hornbooks on nuisance and contract law, U.S. Br. at 11-

13, and its argument that it is the charge-filing section of the

Act, rather than the explicit statutory provisions governing

back pay and damage awards, respectively, that limits

recovery for a violation. U.S. Br. at 22-26.

Amici write to clarify that the question presented in this

case is answered by two distinct inquiries: (1) when a

violation under Title VII — particularly a continuing violation

— accrues for purposes of § 706(e); and (2) whether the

controlling limitations on recoveries for violations of the Act

come not from the charge-filing provision of § 706(e), but

from the explicit statutory limits on back pay in § 706(g)(1)

and on damages in 42 U.S.C. § 1981a. These two inquiries

are answered by established precedent and by the statute.

First, violations accrue for purposes of § 706(e) when the

discrimination “occurs,” and a continuing violation —

a pattern of conduct or practices that begins prior to, but

continues into, the charge-filing period — “occurs” at the

time of the last asserted act of the pattern. Second, Congress

has provided separate, explicit limits on recoveries that do

7

not reference the charge-filing provision. At least one of these

limits expressly provides for recoveries substantially beyond

the charge-filing period. Accordingly, discriminatory conduct

prior to and continuing into the charge-filing period is subject

to Title VII and relief can be afforded for such violations

consistent with the explicit limits on back pay and damages

imposed by the statute.

ARGUMENT

I. A “CONTINUING VIOLATION” ACCRUES AT

THE TIME OF THE LAST ASSERTED ACT IN THE

PATTERN OF DISCRIMINATION.

A. The Continuing Violation Doctrine Postpones

Accrual Until The Continuing Wrong Ceases.

Section 706(e) of Title VII provides that a charge of

unlawful discrimination must be filed with the EEOC within

a specified statutory period (here, 300 days) “after the alleged

unlawful employment practice occurred.” 42 U.S.C. § 2000e-

5(e)(1). Referring to § 706(e), this Court has stated that

“Congress has decided that time limitations periods

commence with the date of the ‘alleged unlawful employment

practice.’ ” Delaware State College v. Ricks, 449 U.S. 250,

259 (1980). Thus, for purposes of § 706(e), this Court has

consistently held that a discriminatory practice “occurs” at

the time of the discriminatory acts alleged in the complaint.

In Ricks this Court emphasized (quoting the Ninth Circuit)

that “(t]he proper focus is upon the time of the discriminatory

acts.” Id. at 258 (quoting Abramson v. University of Hawaii,

594 F.2d 202, 209 (1979) (emphasis supplied)); accord

Lorance v. AT&T Technologies, Inc., 490 U.S. 900, 906

(1989). Therefore, “[d]etermining the timeliness of [an]

EEOC complaint, and [an] ensuing lawsuit requires [courts]

to identify precisely the ‘unlawful employment practice’ of

which [plaintiff] complains.” Ricks, 449 U.S. at 257.

Where the discriminatory act actually complained of lies

outside of the charge-filing period, it is not timely. Jd. at

257-58 (complaint referred to discriminatory denial of tenure,

not termination, thus untimely); Lorance, 490 U.S. at 906

(complaint as to diminution in employment status occurred

in 1979, so 1983 EEOC complaint untimely); United Air

Lines, Inc. v. Evans, 431 U.S. 553, 557 (1977) (1973 EEOC

charge untimely as to practice that occurred in 1968).

Where the discrimination is not a single, isolated act,

but a series of discriminatory acts that are so related as to be

fairly regarded as a continuing “unlawful employment

practice” or course of conduct, this Court has determined

that the discriminatory act “occurs” at the time of the last act

asserted to be a part of the pattern. Havens Realty Corp. v.

Coleman, 455 U.S. 363 (1982), so held in circumstances

nearly identical to those in this case, in the context of the

Fair Housing Act, 42 U.S.C. § 3601 et seg. There, the question

was whether alleged discriminatory acts that predated that

Act’s 180-day charge-filing period and that were part of a

course of conduct continuing into the charge-filing period

were actionable under the Fair Housing Act. At the time

Havens was decided, § 812(a) of the Fair Housing Act,

42 U.S.C. § 3612(a), in language identical to that of Title

VIL, required that “[a] civil action shall be commenced within

one hundred and eighty days after the alleged discriminatory

housing practice occurred.” Id. at 380 & n.22 (emphasis

added). The plaintiffs in Havens alleged “five different

specific incidents allegedly in violation of the Fair Housing

Act,” id. at 380, the first four of which were outside the 180-

day statutory period. This Court found the complaint to have

alleged a continuing violation, and unanimously held that:

for purposes of [the charge-filing period], a

“continuing violation” of the Fair Housing Act

should be treated differently from one discrete act

9

of discrimination. ... [W]e therefore conclude

that where a plaintiff, pursuant to the Fair Housing

Act, challenges not just one incident of conduct

violative of the Act, but an unlawful practice that

continues into the limitations period, the

complaint is timely when it is filed within 180

days of the last asserted occurrence of that

practice.

Id. at 380-81. Accordingly, a related course of acts that fairly

comprise a practice of discrimination is deemed to “occur,”

within the meaning of a limitations period, at the “last

asserted occurrence” of that pattern of unlawful conduct.

Id. at 381.

The petitioners in Havens argued — without persuading

a single member of the Court — that the charge-filing period

for each incident ran from the date of that incident. This Court

rejected the “Petitioners’ wooden application” of the

limitations period because it “ignore[d] the continuing nature

of the alleged violation” and “undermine[dj the broad

remedial intent of Congress embodied in the Act.” Jd. at 380.

Here, the Respondent and the United States offer only the

same “wooden application” of the identical language of

§ 706(e) of Title VIL. It, too, must be rejected.

Bazemore v. Friday, 478 U.S. 385 (1986), employed the

same analysis with respect to discriminatory conduct that

predated even Title VII’s prohibition on discrimination by

state and local government employers. There the Court held

actionable a continuing series of unlawful acts that began

before the statute’s effective date made that conduct unlawful:

A pattern that would have constituted a violation

of Title VII, but for the fact that the statute had

not yet become effective, became a violation upon

10

Title VII's effective date, and to the extent an

employer continued to engage in that act or

practice, it is liable under that statute.

Id. at 395. This Court looked to the continuing acts of the _

defendants that persisted to the time that proceedings were

commenced in determining whether the pattern was

actionable: “Each week’s paycheck that delivers less to a

black than to a similarly situated white is a wrong actionable

under Title VII, regardless of the fact that this pattern was

begun prior to the effective date of Title VII.” Jd. at 395-96

(Brennan, J., concurring, joined by all members of the Court).

In Bazemore, as in Havens, this Court rejected the view

that pre-limitations discriminatory conduct could not be

reached under the Act. Specifically, the Court rejected the

suggestion that differences in salary at the commencement

of proceedings were no more than the present effects of past

discrimination that was not actionable, as in United Air Lines

v. Evans, 431 U.S. at 558. Bazemore held the distinction to

lie in the existence of timely acts of discrimination; in short,

the discrimination had not ended before the action was

commenced:

The “critical question,” the Court declared, “is

whether any present violation exists.” Because the

employer was not engaged in discriminatory

practices at the time the respondent in Evans brought

suit, there simply was no violation of Title VIL.

Bazemore, at 396 n.6, quoting Evans at 558. Accordingly,

Bazemore, consistent with the rule in Havens, holds that

current acts in furtherance of a preexisting pattern of

discrimination make that pattern actionable under Title VI.

This Court’s cases consistently have recognized that the

“continuing violation” doctrine permits Title VII to reach

11

conduct prior to the charge-filing period where discriminatory

acts continue into that period. For example, in Ricks, 449 U.S.

at 257 (citation omitted), the Court observed:

In effect, [Ricks] is claiming a “continuing violation”

of the civil rights laws with the result that the

limitations periods did not commence to run

until his 1-year “terminal” contract expired. This

argument cannot be squared with the allegations of

the complaint. Mere continuity of employment,

without more, is insufficient to prolong the life of a

cause of action for employment discrimination.

If Ricks intended to complain of a discriminatory

discharge, he should have identified the alleged

discriminatory acts that continued until, or occurred

at the time of, the actual termination of his

employment.

See also Lorance, 490 U.S. at 908 (“petitioners.. . . have asserted

a claim that is wholly dependent on discriminatory conduct

occurring well outside the period of limitations, and cannot

complain of a continuing violation”) (emphasis added); Evans,

431 U.S. at 557-58 (claim of continuing violation rejected

because “the critical question is whether any present violation

exists”).

At least two other courts of appeals have, like the Ninth

Circuit, used this same analysis when a course of discrimination

is not complete. Applying, inter alia, Ricks, Lorance, Evans,

and Bazemore, the Third Circuit has repeatedly held, “ ‘[i}f the

alleged discriminatory conduct is a “continuing violation,” the

statute of limitations begins to run on the date of the last

occurrence of discrimination, rather than the first.’ ” Cardenas

v. Massey, No. 00-5225, 2001 WL 1230325 at *2 (Oct. 16, 2001)

(quoting Miller v. Beneficial Mgmt. Corp., 977 F.2d 834,

842 (3d Cir. 1992)). And the Second Circuit has held, “if a

plaintiff has experienced a continuous practice and policy of

12

discrimination, the commencement of the statute of limitations

period may be delayed until the last discriminatory act in

furtherance of it.” Fitzgerald v. Henderson, 251 F.3d 345,

359 (2d Cir. 2001). In such situations, like Mr. Morgan’s,

“a continuing violation may be found where specific and related

instances of discrimination are permitted by the employer to

continue unremedied for so long as to amount to a discriminatory

policy or practice.” Jd.

B. There Is No Foundation In Either Title VII Or In

This Court’s Cases for the Arguments Advanced

By Petitioner And The United States.

Contrary to this Court’s cases, Petitioner incorrectly

criticizes the continuing violation doctrine, and the court of

appeals, as “permitting recovery for discrete acts of alleged

discrimination years after the expiration of the limitations

period.” Pet. Br. at 11. The continuing violation doctrine is not

available where only discrete acts are alleged. Instead, only

continuing, related acts that comprise a pattern of discrimination

are considered continuing violations. And, notwithstanding

Petitioners’ fervent repetition of the words “discrete acts,” the

prohibitions of Title VII are directed to, and its charge-filing

period is triggered by, “unlawful employment practices.”

Nothing in the language of § 706(e) or this Court’s civil rights

cases supports the proposition that the charge-filing period

operates separately for each discrete act of a discriminatory

er eter har or that violations of the Act that extend

beyond the charge-filing period are not actionable. Pet. Br

at 19, 21. In short, Petitioner’s imaginative conception

of “recurring violations” as a substitute for the established

continuing violation doctrine, Pet. Br. at 21 n.7, is wholly without

a basis in Title VII.’

3. Similarly, Petitioner’s hypothesis that continuing violations

should be reserved only for circumstances in which the conduct has

(Cont'd)

13

Likewise, Petitioner ignores both the clear language of

§ 706(e) and this Court’s cases when it asserts that “this Court

has rejected attempts to extend the limitations period when

a discrete allegedly discriminatory act has put the plaintiff

on notice of a potential claim.” Pet. Br. at 15. This assertion

is doubly wrong. The language of § 706(e) expressly

provides, and this Court has consistently held, that the charge-

filing period commences when the discriminatory act

“occurs.” And the cases to which Petitioner refers, Pet. Br.

at 16-18, refused to apply the continuing violation doctrine

not because the plaintiff was “on notice,” but because the

plaintiff could not (as in Evans and Lorance) or did not

(as in Ricks) allege a current discriminatory act.

Further, Petitioner attempts to distinguish Havens in a

single footnote and suggests, without any reference to

Bazemore, that the law regarding the effect of limitations

periods has developed differently with respect to Title VII

and the Faiz Housing Act. Pet. Br. at 30 n.8. This Court’s

holdings and analysis in Havens, Bazemore, Evans, Ricks,

and Lorance all belie Petitioner’s suggestion. As noted above,

the operative limitations language of § 706(e) is identical to

that of the Fair Housing Act in Havens, and all these decisions

looked to whether there were current acts of discrimination

in determining whether a preexisting pattern of such conduct

had not ceased and was, therefore, actionable.

(Cont'd)

not yet risen to the level or quantum to constitute a violation, or

where an employee could not yet reasonably understand that the

conduct is discriminatory, Pet. Br. at 21 n.7, 30-46, is not only

contradicted by precedent, but is logically flawed. In the first instance

there is simply no violation to be continued. Rather, the violation _

will “occur,” for purposes of § 706(e), if at all, only when the requisite

level or quantum of conduct occurs. As to the second, the plaintiff's

reasonable inability to understand that an act is discrimination, calls

for equitable tolling of § 706(e), which begins to run at the time the

act is complete.

14

Finally, Petitioner proposes that this Court abandon the

text and structure of the Act and its own established precedent

to adopt analytically flawed and confusing opinions of other

courts of appeals. Pet. Br. at 9-10, 38-46. This invitation

should be declined. Petitioner holds up a Seventh Circuit

opinion, Galloway v. General Motors Service Parts

Operations, 78 F.3d 1164 (7th Cir. 1996), with great

enthusiasm, and the Fifth Circuit opinion, Berry v. Board of

Supervisors, 715 F.2d 971 (Sth Cir. 1983), with decidedly

less fervor. Pet. Br. at 9-10.

Petitioner’s choice of Galloway as a model for this Court

is curious. First, the opinion in this pro se appeal affirmed

dismissal — after a discussion of the court’s views on the

relative sex- or gender-relatedness and offensive character

of a series of obscenities and vulgarities — on the ground

that, on its view of the facts “no inference could be drawn by

a reasonable trier of fact that [the alleged harasser’s]

conduct ... created a working environment in which

[plaint:ff] ‘could rationally have considered herself at a

disadvantage in relation to her male co-workers by virtue of

being a woman.” Galloway, 78 F.3d at 1168. Thus, such

discussion of the continuing violation doctrine as appears in

the opinion is dicta.

Secund, the court’s opinion shows that it ignored

precedent and statutory language in favor of an untethered,

ad hoc approach. It found the continuing violation doctrine

“vexing,” id. at 1165, concluded, on the basis of a

nypothetical question, that it gave “too little weight to the

social interest in prompt filing,” referred to “standard

principles of limitations law,” and formulated a “concept of

cumulation,” id. at 1166 (emphasis in original), that led it to

conclude: “It seems to us that in such a case, while she can

still sue provided that the last act of harassment occurred

within the statute of limitations, she cannot reach back and

base her suit also on conduct that occurred outside the statute

15

of limitations; for she had no excuse for waiting that long.”

To this was added the “additional consideration(s]” that

“the bringing of the suit is almost certain to stop the harassment”

and “she can always seek injunctive relief against a continuation

of the unlawful conduct.” Jd. at 1167. The court concluded, as

follows:

The principle that we extract from this discussion

and that we think organizes the complex and diffuse

case law on continuing violations under Title VII is

that the plaintiff may not base her (in some cases

his) suit on conduct that occurred outside the

statute of limitations unless it would have been

unreasonable to expect the plaintiff to sue before

the statute ran on that conduct, as in a case in which

the conduct could constitute, or be recognized, as

actionable harassment only in the light of events that

occurred later, within the period of the statute of

Id. (citations omitted).

In this manner, the Galloway court formulated its own rule,

without discussion of, or reference to, either the language of

the statute or this Court’s opinions. The court thus ignored the

express accrual rule of § 706(e) in favor of an indefinite “notice

accrual” rule of its own making. Moreover, it failed to follow

consistent precedent that, where unlawful conduct continues

into the charge-filing period, the discrimination “occurs” with

the last asserted act in the pattern. Galloway is not a correct

statement of the law, and cannot serve as a model.‘

4. The First Circuit opinion in Sabree v. United Bhd. of

Carpenters and Joiners, Local 33, 921 F.2d 396 (ist Cir. 1990),

likewise creates from whole cloth an “inquiry notice” rule that

represents a bar to continuing violations that has no basis in § 706(e)

or this Court’s cases. Indeed, as Petitioner s brief makes clear, the

First Circuit considers no factors other than notice.

16

Ironically, that Galloway is inadequate and aberrational

is best illustrated by other opinions of the author of Galloway.

In Taylor v. Meirick, 712 F.2d 1112 (7th Cir. 1983) (Posner,

J.), the Seventh Circuit stated “the general principle that the

statute of limitations does not begin to run on a continuing

wrong till the wrong is over and done,” and explained this

principle thus:

The principle strikes a balance between the

plaintiff’s interest in being spared having to bring

successive suits, and the two distinct interests that

statutes of limitations serve. One is evidentiary

— to reduce the error rate in legal proceedings by

barring litigation over claims relating to the distant

past. The other is repose. . .. When the final act

of an unlawful course of conduct occurs within

the statutory period, these purposes are adequately

served, in balance with the plaintiff’s interest in

not having to bring successive suits, by requiring

the plaintiff to sue within the statutory period but

letting him reach back and get damages for the

entire duration of the alleged violation. Some of

the evidence, at least, will be fresh. And the

defendant’s uncertainty as to whether he will be

sued at all will be confined to the statutory period.

His uncertainty about the extent of his liability

may be greater, but that is often true in litigation.

Taylor v. Meirick, 712 F.2d 1112, 1116-17, 1118-19 (7th Cir.

1983) (Posner, J.) (emphasis added); see Heard v. Sheahan,

253 F.3d 316, 319 (7th Cir. 2001) (Posner, J.) (holding, in

the context of a prisoner’s 42 U.S.C. § 1983 claim, that

“all the pain after the date of onset, as it were, of deliberate

indifference [by the defendant] was fair game for the

plaintiff’s suit, by virtue of the doctrine of ‘continuing

violation’. . . .”).

17

The Fifth Circuit’s Berry opinion acknowledges an

uncertainty as to proper application of the continuing

violation doctrine, but discusses the principles and cases.

To the extent that Petitioner implies that Berry creates a

“notice” rule barring continuing violations, it misreads the

case. The three factors in Berry do not set up a preclusive

notice rule, but are intended to provide some guidance in

“determining when alleged discriminatory acts are related

closely enough to constitute a continuing violation and when

they are merely discrete, isolated acts which must be regarded

as individual violations.” Jd. 715 F.2d at 981 (emphasis

added). Thus, as in Evans, Ricks and Lorance, the inquiry

focuses on the particular allegation of a discriminatory act,

rather than creating a notice bar. Thus, in asking whether

“the act ha[s] the degree of permanence which should trigger

an employee’s awareness of and duty to assert his or her

rights,” the court is trying to identify when the discrimination

“occurs” and is complete, as in the denial of tenure in Ricks.

And in considering permanence “which should indicate to

the employee that the continued existence of the adverse

consequences of the act is to be expected without being

dependent on a continuing intent to discriminate,” the

court is merely trying to distinguish between completed

discriminatory acts, the mere effects of which will be felt in

the future (as in Evans and Lorance), and intentionally

discriminatory acts that may be repeated in the future (as in

Bazemore and Havens). Although Berry’s factors attempt to

distinguish between completed acts and those that give effect

to continuing intentional discrimination, its language has

been misread to imply a “notice” bar. For this reason, Berry

is not an effective statement of the proper rule, as are the

cases from the Second, Third, and Ninth Circuits, above.

The United States takes a different approach. It attempts

to argue that Havens and Bazemore stand for the proposition

“that a Title VII plaintiff may recover for discrimination that

18

occurs within the charge-filing period despite having notice of

a violation outside the period, but may not recover for violations

that occurred outside the period.” U.S. Br. at 17-19. But even

its own discussion of the cases cannot conceal that

discriminatory patterns of conduct outside of the limitations

period were held to be actionable, and that the determining factor

was not notice, but the existence of a “present violation” that

continued that discriminatory pattern of conduct. U.S. Br. at

17, quoting Bazemore at 396 n.6. Indeed, its brief acknowledges

that in Havens, “the plaintiffs could sue because they had alleged

‘an unlawful practice that continue[d] into the limitations

period,’ ” U.S. Br. at 18 (quoting Havens at 381), and adds that

in Lorance v. AT&T Technologies, Inc., 490 U.S. 900, 912 &

n.5 (1989), the Court noted that facially discriminatory seniority

systems “can be challenged at any time” and that under the Civil

Rights Act of 1991, 42 U.S.C. § 2000e-5(e)(2), Congress

provided that the subsequent operation of facially neutral but

intentionally discriminatory seniority systems could be

challenged. U.S. Br. at 17-18 & n.6.

___ Indeed, the government’s brief itself confirms that Congress

has followed. The brief quotes from the legislative history of

the 1972 amendments to the Act, to the effect that where there

are continuing violations, “measuring the running of the time

period from the last occurrence of the discrimination and not

from the first occurrence is continued.” U.S. Br. at 16 quoting

118 Cong. Rec. at 4940, 4941. Even as Congress then confirmed

the “last occurrence” accrual rule for conduct predating the

charge-filing period, it also provided for the accrual of back

pay for up to two years prior to the charge-filing period, in

§ 706(g)(1) of the Act. Yet the United States argues, in

contradiction to the obvious intent and effect of the 1972 back

pay amendments, without any textual or structural support in

the Act, and contrary to established case law, that conduct outside

the statute is not actionable.

19

Thus, the United States agrees with Petitioner that this

question should be decided not with reference to the language

and interpretations of Title VII, but according to decisions

regarding the Clayton Act and civil RICO. Yet the operative

limitations of those statutes differ from Title VII and the terms

of those statutes provide for recoveries spanning remarkable

periods of time. For example, in determining limitations

questions regarding civil RICO, the Court has been mindful

of the fact that the statute’s definition of “pattern” may well

permit proof of acts 14 years before a lawsuit is filed.

See Rotella v. Wood, 528 U.S. 549, 555 (2000). And the

recovery permitted by the applicable statute of limitations

for the continuing violation in Hanover Shoe, Inc. v. United

Shoe Machinery Corp., 392 U.S. 481 (1968), included

injuries sustained between 1939 and 1955. Id. at 484, 495,

502 n.15. Finally, this Court has been concerned that the

peculiar availability of treble damages in these statutes would

pose a great temptation for plaintiffs deliberately and unfairly

to delay in filing suit in order io profit from the accumulation

of treble damages. See Klehr v. A.O. Smith Corp., 521 U.S.

179, 187 (1997). Petitioner’s deletion of the word “treble”

from its quotation of Klehr is plainly not an attempt to save

space. See Pet. Br. at 47 (excising the word “treble” to

produce a sentence condemning plaintiffs who delay suit “as

the pattern continues and * * * damages accumulate”).

As Petitioner is keenly aware, these statutes are anything but

analogous to Title VII, with its 180- or 300-day charge-filing

period, a two-year limit on back-pay awards, and damages

capped at anywhere from $50,000 to $300,000 (depending

on the size of the employer).

As well, although Petitioner and the United States

correctly note that Title VII’s remedial provisions are, at least

in part, modeled on the National Labor Relations Act, those

parallel provisions need not and should not ipso facto be

construed in identical ways — because their underlying

purposes differ greatly. See Chauffeurs, Teamsters & Helpers,

20

Local No. 391 v. Terry, 494 U.S. 558, 573 (1990) (rejecting

the argument that “if Title VII is comparable to one labor

law remedy it is comparable to all remedies available in the

NLRA context”); see also Hammontree v. N.L.R.B., 925 F.2d

1486, 1498 (D.C. Cir. 1991) (citing “broad[] conceptual

differences between the remedial regimes created by Title

VII and the NLRA”). Title VII’s broad remedial and

prophylactic purposes, see infra Part III, are not necessarily

served by the same doctrines that help secure present and

future “industrial peace” under the NLRA, e.g., Auciello

Iron Works, Inc. v. N.L.R.B., 517 U.S. 781, 785 (1996).

Nevertheless, the NLRA recognizes continuing violations,

see Melville Confections, Inc. v. N.L.R.B., 327 F.2d 689, 692

(7th Cir. 1964), and interpretations of the availability of relief

under that statute are irrelevant, because it has no express

provisions governing the extent of relief permitted and does

not afford all of the relief that Title VII does in § 706(g)(1)

and 42 U.S.C. § 1981a.

Moreover, the position of the United States in this brief

is of recent origin, and contradicts the formal, established

interpretations of the federal agency charged with the

responsibility to interpret and enforce Title VII.°

C. The EEOC’s Own Rule, To Which This Court

Owes “Great Deference,” Is Identical to the Rule

Applied By the Court of Appeals.

The court of appeals applied the same rule that the EEOC

has adopted in its official interpretation of Title VII. As this

Court has noted in upholding EEOC interpretations of Title

Vil, “(t]he administrative interpretation of the Act by the

enforcing agency is entitled to great deference.” Griggs v.

Duke Power Co., 401 U.S. 424, 433-34 (1971); accord, e.g.,

5. See Brief of the NAACP Legal Defense and Educational

Fund, Inc. as Amicus Curiae in Support of Respondent.

21

Gregory v. Ashcroft, 501 U.S. 452, 493 (1991). The EEOC

compliance manual explains “continuing violations” as

follows:

In contrast to a charge which involves an event

that transpired on a certain date, a continuing

violation takes place over a period of time,

including into the filing period. Where a charge

raises a continuing violation, all of the events

forming part of the continuing violation, including

those that transpired outside the filing period, are

considered timely, and relief may be obtained for

all of the discriminatory events.

EEOC Compliance Manual § 2-IV.C.2 (EEOC Directives

Transmittal, Aug. 21, 2001, at 40) (emphasis added). This

directive follows the recent EEOC opinion in Anisman v.

O'Neill, 2001 WL 402493 (E.E.0.C. Apr. 12, 2001), where

the Commission explained its rationale:

[E]vidence that a complainant had, or should have

had, a reasonable suspicion of discrimination more

than 45 days prior to initiating EEO Counselor

contact, will not preclude acceptance of an otherwise

timely claim of ongoing discrimination. This holding

is directly related to one of the major goals of the

revised 29 C.F.R. Part 1614 regulations, that is, to

address the problem of fragmentation of unlawful

employment practice claims. .. .

When a continuing violation is alleged, the

running of the period for initiating a Title VII

complaint starts from the most recent occurrence

of the alleged discrimination and not from the first

Id. at *4-5 (emphasis added).

22

The EEOC. which as the enforcing agency for Title VII

is thoroughly familiar with the day-to-day operation of the

statute, has adopted a definition for continuing violations of

Title VII consistent with the language, structure, and

legislative intent of the statute and with this Court’s

precedent. Certainly the EEOC he... = ery incentive to craft

rules that reduce litigation and increase voluntary employer

compliance, while ensuring that cases are prosecuted in a

timely manner. This Court should defer to the considered,

consistent judgment of this statutory agency.

fl. TITLE VII’S EXPLICIT PROVISIONS

AFFORDING RELIEF SHOULD NOT BE

UNDERCUT BY AN IMPLIED LIMITATION

BASED ON THE CHARGE-FILING PROVISION.

Congress has affirmatively provided a sophisticated

remedial scheme that specifies when and by what means

various remedies are available under Title VII. These

remedial provisions make no reference to the charge-filing

period as a limitation on remedies; likewise, the charge-filing

provision speaks only to filing and says nothing about

remedies (“A charge under this section shall be filed

within [either 180 or 300] days after the alleged unlawful

employment practice occurred. . . .”). Thus, both the structure

and language of the sections of the Act that afford remedies

preclude the use of the charge-filing period as a judicial

limitation on remedies. Section 706(g)(1) of the Act, with

its two-year limit on back pay awards, clearly provides relief

for acts outside the 180- or 300-day charge-filing period —

and thus is evidence that Congress has endorsed the existing

continuing violation doctrine. Section 1981a’s graduated

schedule of caps on compensatory and punitive damages

contains Congress’s affirmative and express judgment with

respect to the issue of limits on Title VII damage awards.

This Court must honor Congress’s judgments on these matters

and cannot accept the invitation of Petitioner and the United

23

States to imply an inconsistent additional limit from the

charge-filing provision in § 706(e) of the Act.

A. By Its Plain Terms, Section 706(g)(1) Provides For

the Award of Monetary Relief Covering A Period

Longer Than the Statutory Filing Period.

Section 706(g){1) provides that “[b]ack pay liability shall

not accrue from a date more than two years prior to the filing

of a charge with the Commission.” 42 U.S.C. § 2000e-5(g)(1).

And since back pay can “accrue” only if it is caused by a

violation, it follows from the language of § 706(g)(1) that a

plaintiff can seek to establish employer liability for actions

outside the statutory period. That is, it expressly provides

relief pursuant to the continuing violation doctrine as it exists

in Evans, Ricks, Havens, Bazemore, and Lorance, and as

articulated by the EEOC, see EEOC Compliance Manual,

supra, § 2-IV.C.2 (“Where a charge raises a continuing

violation, ... relief may be obtained for all of the

discriminatory events,” “including those that transpired

outside the filing period”).

Not only does § 706(g)(1) explicitly contemplate relief

outside the filing period, but the express language of that

section strongly suggests that this two-year limit on back

pay is the only limit on relief awarded under that section.

Various equitable remedies are permitted, yet the only

mention of any limit on any of these forms of relief is the

above-quoted two-year limit on backpay:

If the court finds that the respondent has

intentionally engaged or is intentionally engaging

in an unlawful employment practice . . . , the court

may . . . order such affirmative action as may be

appropriate, which may include, but is not limited

to, reinstatement or hiring of employees, with or

without back pay . . . , or any other equitable relief

24

as the court deems appropriate. Back pay liability

shall not accrue from a date more than two years

prior to the filing of a charge with the Commission.

The clear effect of this language is that if a court “deems

appropriate,” any “equitable relief” except backpay may reach

back beyond two years of the filing date. And in either event,

~~ ean Rc en sim aie

This Court’s cases confirm that § 706(e)(1) does not limit

the relief that may be awarded under § 706(g)(1). In Franks

v. Bowman Transportation Co., 424 U.S. 747, 758 (1976),

this Court rejected a similar request to import a limit into

§ 706(g)(1) from another section of the Act (§ 703(h),

42 U.S.C. § 2000e-2(h)). The Court observed that “[s]ection

703(h) certainly does not expressly purport to qualify or

proscribe relief otherwise appropriate under the remedial

provisions of Title VII, § 706.” So it is here; § 706(e) plainly

speaks to when a charge must be filed, not to how far back

appropriate relief may be granted. Similarly, just a few

months ago this Court unanimously rejected an attempt to

import damage caps as a limit on § 706(g)(1) remedies. See

Pollard v. E.I. Du Pont De Nemours & Co., 121 S. Ct. 1946

(2001). And in Albemarle Paper Co. v. Moody, 422 U.S. 405

(1975), the Court referred to the two-year limit on back

pay as the sole, determinative temporal limit on such relief.

See id. at 410 n.3 (“Under Title VII backpay liability exists

only for practices occurring after the effective date of the

Act, July 2, 1965, and accrues only from a date two years

prior to the filing of a charge with the EEOC.”).

25

B. In Providing For Compensatory and Punitive

Damages Under Title VII, Congress Chose a

Detailed Schedule of Limitations Drastically

Different From The Charge-Filing Period.

In the 1991 amendments to Title VII, Congress placed a

sophisticaied set of caps on the dollar amounts recoverable

for compensatory and punitive damages, calibrated to the

size of the employer:

The sum of the amount of compensatory damages

awarded under this section for future pecuniary

losses, emotional pain, suffering, inconvenience,

mental anguish, loss of enjoyment of life, and

other nonpecuniary losses, and the amount of

punitive damages awarded under this section, shall

not exceed, for each complaining party —

(A) in the case of a respondent who has

more than 14 and fewer than 101

employees in each of 20 or more

calendar weeks in the current or

preceding calendar year, $50,000;

(B) in the case of a respondent who has

more than 100 and fewer than 201

employees in cach of 20 or moré

calendar weeks in the current or

preceding calendar year, $100,000; and

(C) in the case of a respondent who has

more than 200 and fewer than 501

employees in each of 20 or more

calendar weeks in the current or

preceding calendar year, $200,000; and

(D) in the case of a respondent who has

more than 500 employees in each of 20

26

or more calendar weeks in the current

or preceding calendar year, $300,000.

42 U.S.C. § 1981 a(b)(3). This legislative decision shows that

Congress has determined the issue of the availability and

limits on Title VII damage awards, without any reference to

the charge-filing period. This Court may not create a different

standard. Even if this Court were to agree with the policy

judgments offered by Petitioner and the United States, this

Court may not imply additional limits by adopting a

contradictory construction of the remedial scheme.

When the United States observes that “(dJollar limits on

' damages are compatible with temporal limits on recovery,”

U.S. Br. at 25, it is stating only that it is logically possible to

impose a different, additional limit on Title VII awards —

a cutoff based on the charge-filing provision (a section of

the statute that makes no reference to relief), in addition to ©

the more expansive two-year limit on back pay and the

entirely different damage cap scheme decided upon by

Congress. It may well be possible to add another limit, but

that does not make it this Court’s prerogative to do so.

Il. THE EXISTING CONTINUING VIOLATION

DOCTRINE COMPORTS WITH LEGISLATIVE -

INTENT, FOSTERS JUDICIAL ECONOMY, AND

PROMOTES EQUITY.

A. The Established Continuing Violation Doctrine

Endorsed and Facilitated by Congress Serves the

Purposes of Title VII.

As this Court has noted, its decisions in this area must

“be measured against the purposes which inform Title VII.”

The Court has sought to enunciate rules “which, if applied

generally” in Title VII cases, “would not frustrate the central

statutory purposes of [1.] eradicating discrimination

—<-—

27

throughout the economy and [2.] making persons whole for

injuries suffered through past discrimination.” This Court has

required “principled application of standards consistent with”

these two “transcendent legislative purposes.” Albemarle Paper

Co. v. Moody, 422 U.S. 405, 417 (1975) (quoting Griggs v. Duke

Power Co., 401 U.S. at 429-30). Here, the established continuing

violation doctrine is the only rule that comports with these

directives.

The primary, “prophylactic” purpose of Title VII is served

by the preservation of incentives for employers to eradicate

discrimination. If an employer knows it may be liable for any

continuing course of discrimination, it will have strong

incentives to end such treatment. Only such a rule serves Title

VII's aim to “motivate employers to detect and deter Title VII

violations.” Kolstad v. American Dental Ass'n, 119 U.S. 2118,

2121 (1999). Further, repose is served, once continuing

discrimination has stopped or after a discrete, non-continuing

violation.

A contrary rule linking the continuing violation doctrine to

“notice” would place enormous litigation burdens on employees

by virtually assuring employers that they can never be held liable

for more than 300 continuous days of intentional discrimination

in a single lawsuit. It would also place the onus on the employee

to divine the precise moment when a court will find that there

is enough discrimination to bring suit, but not so much

discrimination that damages for some of the discrimination are

already out of reach because of “notice”. Placing these burdens

on employees would contravene the Court’s teaching that

underlying Title VII is a basic policy of “encouraging forethought

by employers and saving action by objecting employees.”

Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998);

see also id. at 764 (“Title VII is designed to encourage the

creation of antiharassment policies and effective grievance

mechanisms.”); cf. 29 C.F.R. § 1604.11(f) (1997) (encouraging

28

employers to develop grievance procedures and to “take all steps

necessary to prevent sexual harassment from occurring”).

The United States argues that if the charge-filing period

were construed as a remedial limit (notwithstanding the express

language of the statute to the contrary), employers would “always

have an incentive to comply with Title VII, because their ongoing

violations remain actionable.” U.S. Br. at 9. It states this as

though it is somehow remarkable that its reading of Title VI

preserves the viability of claims based on present discrimination.

Congress did not enact or intend such a crabbed rule. This Court

has stated, in the related context of awards of backpay under

Title VI, “[i}t is the reasonably certain prospect of a backpay

award that provides the spur or catalyst which causes employers

and unions to self-examine and to self-evaluate their employment

practices and to endeavor to eliminate” discrimination.

Albemarle, 422 U.S. at 417-18 (emphasis added). Similar logic

applies here. The established continuing violation doctrine is

crucial to providing “the spur or catalyst” for employers “to

self-examine.”* In the same spirit, this Court has taught that

“[wJhere racial discrimination is concerned, [a] district court

has not merely the power but the duty to render a decree which

will so far as possible eliminate the discriminatory effects of

the past as well as bar like discrimination in the future.”

Louisiana v. United States, 380 U.S. 145, 154 (1965).

6. Such incentives for self-examination reinforce and

complement the broad affirmative duties Title VII imposes on

employers to avoid or prevent violations of Title VII. See Faragher,

524 U.S. at 806. Courts have not hesitated to find that where

employers take modest affirmative measures they can predictably

protect themselves from Title VII liability. See, e.g., Scrivner v.

Socorro Indep. Sch Dist., 169 F.3d 969, 971-72 (Sth Cir. 1999)

(employer not liable because it had an effective anti-harassment policy

and responded promptly to complaints); Stuart v. General Motors

Corp., 217 F.3d 621 (8th Cir. 2000) (employer’s response to

complaints relieved employer of liability).

29

There is no tradeoff here between prompt filing and

incentives for employers to eliminate unlawful discrimination.

As noted, there is no incentive to postpone suit because there

are no treble damages. Moreover, this Court has stated that in

order for the continuing violation doctrine to apply there must

be a “continu[ation]” of the same “act or practice,” Bazemore,

478 U.S. at 395, a requirement which adequately protects against

attempts to revive discrete, unrelated, time-barred acts. And

employees already are required to put their employers on notice

of their Faragher complaints. See supra n.6.

In any event, under this Court’s teachings, continuing

violations are by definition not stale. Thus, this case is not about

weighing repose against other possible ends to be served; rather,

it is about determining whether there is any staleness concern

at all. “Where the challenged violation is a continuing one, the

staleness concern disappears.” Havens, 455 U.S. at 380.

B. Grafting A“Notice” Limitation Onto Section 706(e)

Would Encourage Multiple, Premature Lawsuits.

A “notice accrual” rule for Title VII suits would put a

premium on precipitous and duplicative litigation, sending a

message to employees that, essentially, sooner is usually safer.

It would threaten to penalize, and thereby would push toward

federal courthouses, others who, like Mr. Morgan, might

otherwise attempt less drastic measures to resolve disputes and

to give employers opportunities to correct violations outside

the legal process.

Furthermore, under a rule that measures accrual at each

day of violation, “make whole” relief would require multiple

lawsuits instead of a single lawsuit for a related series of acts or

continuing course of action. Potentially, every day is another

cause of action. As noted in the context of § 1983 claims, “[w]e

have enough prisoners’ suits without having to create incentives

to bring multiple suits arising out of the same course of events.”

Heard, 253 F.3d at 320.

30

Mr. Morgan’s case provides an example of these

problems and the unfairness that a notice accrual rule

limitation would create. With regard to each incident of

discrimination, he diligently sought means of resolving the

problem short of a federal lawsuit. It is frankly appalling to

have Amtrak disingenuously assert — without any regard to

the history of Mr. Morgan’s persistent appeals to Amtrak to

address the discrimination of Messrs. Vandenburg, Denton,

Bordenave, Borge, Geske, and others — that Mr. Morgan

has somehow “knowingly [sat] on his . . . rights”. Pet. Br. at

46. And it would be far too generous to suggest that Amtrak

was merely “sitting.” Despite persistent pleas for redress,

Amtrak knowingly permitted its managers to pursue their

pattern of discrimination against Mr. Morgan. It would thwart

the purposes of Title VII to allow the very notice that should

have spurred Amtrak to action to be used against Mr. Morgan.

CONCLUSION

The decision of the Court of Appeals should be affirmed.

Respectfully submitted,

JouN A. PayTon

Gary T. JOHNSON

Co-Chairs

NORMAN REDLICH

Trustee

BARBARA R. ARNWINE

THOMAS J. HENDERSON*

LAWYERS’ COMMITTEE FOR

Civ. Ricuts Unper Law

1401 New York Ave., N.W.

Washington, D.C. 20005

(202) 662-8600

* Counsel of Record

ti

—

MERRILL C. GODFREY

Mark J. TANNEY

SHEARMAN & STERLING

801 Pennsylvania Ave., N.W.

Suite 900

Washington, D.C. 20004

(202) 508-8000

DENNIS COURTLAND HAYES

NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE

4805 Mt. Hope Drive

Baltimore, MD 21215

FRANKLIN M. LEE

Minority Business

ENTERPRISE LEGAL

DEFENSE AND EDUCATION FUND

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Washington, D.C. 20003

Marcia D. GREENBERGER

Juprrx C. APPLEBAUM

NATIONAL WOMEN’S Law CENTER

11 Dupont Circle

Suite 900

Washington, D.C. 20036

Juprrx L. LicHTMAN

Jocetyn C. Frye

NATIONAL PARTNERSHIP FOR

Women & FAMILigs

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Washington, D.C. 20009

Marc STERN

AMERICAN JEWISH CONGRESS

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New York, NY 10028

PauLa A. BRANTNER

NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION

_ 44 Montgomery Street

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Attorneys for Amici Curiae