# Amicus Curiae Brief — National Railroad Passenger Corporation v. Morgan

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0463%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 101

## Text

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
419 New Jersey Avenue, SE
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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0463%3A13. Public record. Not legal advice.