Amicus Curiae Brief — Arbaugh v. Y & H Corp.

2

It represents an underlying membership of more than three

million businesses and organizations in every industrial

sector and geographic region of the country.

The National Federation of Independent Business Legal

Foundation (“NFIB Legal Foundation”)—a nonprofit public

interest law firm established to protect the nghts of Amer-

ica’s small business owners—is the legal arm of the National

Federation of Independent Business (“‘NFIB’’), the Nation’s

oldest and largest organization dedicated to representing the

interests of small business owners throughout all 50 states.

The 600,000 NFIB members own a wide variety of small

businesses, including restaurants, family farms, neighbor-

hood retailers, service companies, and technology manufac-

turers.

The Society for Human Resource Management (“SHRM’’)

is the world’s largest association devoted to human resource

management. Representing more than 200,000 individual

members, the Society’s mission is to serve the needs of

human resource (“HR”) professionals by providing the most

essential and comprehensive resources available. As an

influential voice, the Society’s mission is also to advance the

human resource profession to ensure that HR is recognized as

an essential partner in developing and executing organiza-

tional strategy. Founded in 1948, SHRM currently has more

than 550 affiliated chapters and members in more than 100

countries.

The resolution of the issue presented in this case will have

a direct impact on hundreds of thousands of members of the

Chamber, the NFIB, and the SHRM. The smallest of small

businesses—those with 15 or fewer employees—include

mom and pop stores, dry cleaners, landscaping companies,

submission of this brief. S. Ct. Rule 37.6. ihe brief is filed with

the consent of the parties, and copies of the consent letters have

been filed with the Clerk.

3

barbershops, beauty salons, car washes, restaurants, and

family farms, and Congress sought to categorically exempt

such small concerns from Title VII regulation.’

Amici have collectively participated as amici curiae in

many cases before this Court, including cases relating to the

federal antidiscrimination laws and affecting the interests of

small business owners. See, e.g., Ballard v. Commissioner,

125 S. Ct. 1270 (2005); McNab v. United States, 540 US.

1177 (2004); Kolstad v. American Dental Ass'n, 527 U.S.

526 (1999); Walters v. Metropolitan Educ. Enters., Inc., 519

U.S. 202 (1997).

SUMMARY OF ARGUMENT

This case asks whether Congress intended federal courts to

exercise jurisdiction over Title VII claims against the small-

est of employers—those who employ fewer than fifteen

employees. The answer is no; Title VII’s numerosity re-

quirement is jurisdictional.

Congress may define through statute the boundaries of fed-

eral court jurisdiction. All of the parties to this case agree on

that. The parties also agree that Congress has often acted to

limit a federal court’s jurisdiction to hear and enforce federal

claims, and that jurisdictional limitations manifest them-

selves in a variety of ways. Title VII’s numerosity require-

ment—which restricts the statute’s definition of “employer”

to those entities with fifteen or more employees—is one such

jurisdictional limitation. The text of the statute supports the

conclusion that the numerosity requirement is jurisdictional.

Title VII’s ample legislative history, which contains multiple

? “Small businesses” are frequently defined as having fewer

than 500 employees. See, eg., United States Small Business

Administration, Office of Advocacy, Frequent!y Asked Questions

(Oct. 2005), available at http://www.sba.gov/advo/stats/sbfaq.pdf.

The term is used in this brief, however, to describe the subset of

businesses with fewer than 15 employees.

4

references to legislators’ concerns about the great burdens on

small employers if they were to be subjected to Title VII

lawsuits, bears out that conclusion. And this Court’s case

law—including two cases in which the Court addressed Title

VII numerosity issues that had led to dismissals for lack of

jurisdiction below—substantiates that conclusion as well.

At a practical level, it makes plain sense that the numeros-

ity requirement is jurisdictional. Many of the smallest com-

panies—those on Title VII’s numerosity “bubble’”—live on

the financial edge. They have little capital available to de-

fend a costly federal discrimination lawsuit, and they have no

legion of attorneys, in-house or otherwise, at their immediate

command. Finding Title VII’s numerosity requirement to be

jurisdictional grants such companies the deserved opportu-

nity to secure dismissal from a Title VII case at the earliest

possible stage—before costly discovery, summary judgment

motions, or trial—as well as the flexibility to seek and re-

ceive dismissal on jurisdictional grounds at a later stage of

the proceedings if the numerosity issue manifests itself only

then. And from the perspective of the Title VII plaintiff,

deeming the requirement jurisdictional does not alter the

outcome: if a plaintiff sues a company that does not employ

fifteen employees, and thus is not deemed an “employer”

under the Act, that plaintiff loses. Whether that plaintiff

loses early—at a threshold, jurisdictional stage—or late, the

result to the plaintiff is the same. The legislature intended to

immunize small employers from Title VII suits when it set

the statute’s numerosity limit, and that limit should be given

the significance Congress intended it to have.

All of the legal and practical inquines therefore point the

same way in this case: the Court should conclude that Title

VII’s numerosity requirement is jurisdictional.

5

ARGUMENT

I. CONGRESS HAS, AND REGULARLY EXER-

CISES, BROAD AUTHORITY TO LIMIT THE

JURISDICTION OF THE FEDERAL COURTS.

The Constitution authorizes Congress to limit the subject

matter jurisdiction of the federal courts as it sees fit. U.S.

Const. art. 1, § 8, cl. 9. “It is a fundamental precept that

federal courts are courts of limited jurisdiction. The limits

upon federal jurisdiction, whether imposed by the Constitu-

tion or by Congress, must be neither disregarded nor

evaded.” Owen Equip. & Erection Co. v. Kroger, 437 U.S.

365, 374 (1978). As far back as 1807, Chief Justice Marshall

explained that “courts which are created by written law, and

whose jurisdiction is defined by written law, cannot tran-

scend that jurisdiction.” Ex parte Bollman, 8 U.S. (4 Cranch)

75, 93 (1807); see also Mxyor v. Cooper, 73 U.S. (6 Wall.)

247, 252 (1868) (federal court jurisdiction can exist only if

the Constitution permits it and an act of Congress supplies

it). Congress thus controls if or when federal courts obtain

subject matter jurisdiction over a dispute.

Congress has many times exercised its authority to limit the

jurisdiction of the federal courts, and petitioner specifically

acknowledges as much. Pet. Br. 20 & nn.25-30, 22-23 &

nn.32-37 (citing multiple statutes imposing jurisdictional

limits based on, inter alia, exhaustion, mediation, and

amount-in-controversy requirements). The Solicitor Gen-

eral’s amicus submission likewise recognizes that Congress

has imposed jurisdictional limits in a multitude of statutes,

including the admiralty statute, 46 U.S.C. App. § 740 (juris-

diction only when “a vessel” in “navigable water” is the

“proximate cause” of alleged harm), Jerome B. Grubart, Inc.

v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 541

(1995); the Federal Tort Claims Act (jurisdiction only when

the United States waived immunity and administrative claim

was filed with appropriate government agency), FDIC v.

6

Meyer, 510 U.S. 471 (1994); 28 U.S.C. § 1343, providing for

redress of the deprivation of federal rights under color of

state law (jurisdiction only if a statutory action has been

alleged, as held in Mount Healthy City Sch. Dist. Bd. of

Educ. vy. Doyle, 429 U.S. 274, 278-279 (1977)); and the

Foreign Sovereign Immunities Act (jurisdiction only when

facts meet specific immunity exception); and 28 U.S.C.

§ 1332 (jurisdiction only when parties are citizens of differ-

ent states). See U.S. Br. 12, 22.

Additional examples abound—including, importantly,

many statutes where a jurisdictional prerequisite exists else-

where than the provision spelling out a federal court’s en-

forcement authority. For instance, a court must determine

whether an employee benefits plan meets the statutory defini-

tion of an “employee welfare benefit plan” governed by

ERISA before it may exercise jurisdiction over an ERISA

claim. See, e.g., Gualandi v. Adams, 385 F.3d 236, 239 (2d

Cir. 2004); Xaros v. U.S. Fid. & Guar. Co., 820 F.2d 1176

(11th Cir. 1987). ERISA Section 1003(b) specifies that the

Statute does not apply to certain employee benefit plans,

including governmental or church plans. ERISA’s broad

civil enforcement section itself, however, does not contain

that limitation. See 29 U.S.C. § 1132. Nonetheless, courts

recognize that if a plan is not a covered “employee welfare

benefit plan” within the scope of Section 1003, they have no

jurisdiction to adjudicate an alleged ERISA violation.

Another example appears in the antitrust laws. A defen-

dant’s conduct must have a “direct, substantial, and reasona-

bly foreseeable effect” on interstate commerce before a

federal court may exercise jurisdiction over a Sherman Act

claim. 15 U.S.C. § 6a; see, e.g., United Phosphorous, Lid. v.

Angus Chem. Co., 322 F.3d 942, 945-952 (7th Cir.) (en

banc), cert. denied, 540 U.S. 1003 (2003); Save Our Ceme-

teries, Inc. v. Archdiocese of New Orleans, 568 F.2d 1074

(Sth Cir. 1978); Diversified Brokerage Servs., Inc. v. Greater

Des Moines Bd. of Realtors, 521 F.2d 1343 (8th Cir. 1975).

7

Similarly to Title VII, the Sherman Act’s jurisdictional pro-

vision is framed quite broadly: “The several district courts of

the United States are invested with jurisdiction to prevent and

restrain violations of sections | to 7 of this title.” 15 U.S.C.

§ 4. But, as with the interplay between provisions of the

ERISA statute, another provision of the Sherman Act—here

Section 6(a)—circumscribes a federal court’s jurisdictional

authority.

A third example appears in the copyright laws. The juris-

dictional grant to federal courts—found in 28 U.S.C.

§ 1338—broadly states that “district courts shall have origi-

nal jurisdiction of any civil action arising under any Act of

Congress relating to * * * copyrights * * *.” Another statu-

tory provision, however, limits that broad jurisdictional

grant. In 17 U.S.C. § 411(a), Congress limited the actions

that can be adjudicated in federal court to those involving

registered copyrights, even though “registration is not a

condition of copyright protection.” 17 U.S.C. § 408(a). An

owner of an unregistered copyright may still suffer infringe-

ment, but it is not infringement that a district court has sub-

ject matter jurisdiction to adjudicate. See La Resolana Archi-

tects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1200-

01 (10th Cir. 2005).

The sheer breadth and number of statutes in which Con-

gress has limited jurisdiction—and the tremendous variety of

ways in which Congress has limited jurisdiction in other

statutory contexts—provide the necessary backdrop for the

conclusion here: Title VII’s numerosity requirement, like the

(often fact-based) jurisdictional requirements in many other

statutes, similarly limits federal court jurisdiction.

8

II. CONGRESS INTENDED TITLE VII’S EM-

PLOYEE NUMEROSITY REQUIREMENT TO

OPERATE AS A JURISDICTIONAL LIMITA-

TION.

1. The Court may and should begin with a straightforward

reading of the statute itself. The statutory language at issue

in Title VII, including its definition of “employer,” is that of

limitation and exclusion. 42 U.S.C. § 2000e(b). The Act

prohibits unlawful employment practices by an employer—

no other—and specifically defines those considered to be

“employe. s” under the statute. 42 U.S.C. § 2000e-2; see also

id. § 2000e-3(a), (b). If an entity is not an “employer,” then

there is no claim for a federal court to adjudicate. Yet under

petitioner’s proffered jurisdictional reading, a court would

have jurisdiction over any Title VII claim no matter how

unlike an “employer” the defendant entity was. Compare

Woodard v. Virginia Bd. of Bar Examiners, 598 F.2d 1345,

1346 (4th Cir. 1979) (no subject matter jurisdiction over Title

VII discrimination claim against Virginia Board of Bar Ex-

aminers brought by student sitting for exam).

2. The legislative history of Title VII and the 1972

amendments to the Act confirm that Congress viewed the

numerosity requirement as a fundamental limitation on the

jurisdiction of the federal courts to entertain employment

disputes. Title VII was enacted against a backdrop of the

civil mghts conflicts of the 1960s—including, importantly,

fear of “the steady and deeper intrusion of the Federal power

in fields where the problem is essentially State and local in

character.” 110 Cong. Rec. 8193 (Apr. 16, 1964) (Sen.

Dirksen), cited in EEOC v. Commercial Office Prods. Co.,

486 U.S. 107, 116 (1988). In determining which employers —

would be categorically excluded from the Act—i.e., where to

draw the line beyond which “the Federal power” would not

intrude on businesses’ employment practices—Congress

focused on two concerns: protecting small businesses from

the financial burdens associated with regulation under the

9

Act, and avoiding encroachment on the relationship between

a small business owner and his or her employees.

Members of Congress expressed grave concerns that in-

cluding small businesses within Title VII’s ambit would

impose costs—both administrative and related to litigation—

that small companies could and should not reasonably be

forced to bear. See, e.g., 110 Cong. Rec. 2708, 2711, 2712

(Feb. 10, 1964), 9594 (Apr. 29, 1964), 13087, 13092 (June 9,

1964); 118 Cong. Rec. 2388-90, 2391-94, 2409-11 (Feb. 2,

1972); Sen. Subcomm. on Labor of the Comm. on Labor and

Public Welfare, 92d Cong., Legislative History of the Equal

Employment Act of 1972, at 1010, 1375. As one Senator

observed, “[H]ow many of these little fellows in business are

able to get to court? Most of them cannot afford to pay the

court cost, let alone the legal fees that would be necessary” to

defend against a federal discrimination claim. 110 Cong.

Rec. at 2711 (Sen. Rogers). Another emphasized that small

businesses are “without the assets and capability to cope with

the legal and administrative tangle” the Act would “thrust

upon them.” 118 Cong. Rec. 2389 (Sen. Stennis). See also

Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir. 1995)

(“Congress decided to protect small employers ‘in part be-

cause Congress did not want to burden small entities with the

costs associated with litigating discrimination claims.’ ”)

(quoting Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587

(9th Cir. 1993)).

Members of Congress also expressed concern that includ-

ing small businesses in Title VII would too deeply intrude

into the culture of small businesses. Senator Fulbright, for

example, observed that “(t]he matter of selection of employ-

ees goes to the very heart of the success of a small business

***” 110 Cong. Rec. 9594 (Sen. Fulbright) (Apr. 29,

1964). See also id. at 13085 (Sen. Cotton) (“{W]hen a small

businessman * * * selects an employee, he comes very close

to selecting a partner * * *.”); id. at 13088 (June 9, 1964);

Sen. Subcomm. on Labor of the Comm. on Labor and Public

10

Welfare, 92d Cong., Legislative History of the Equal Em-

ployment Act of 1972, at 1010 (small business associates are

in “almost a family relationship”); id. at 1285, 1375.

The extensive discussion preceding the initial passage of

Title VII, including the repeated airing of the legislators’

intent that small businesses be insulated from Title VII

claims against them, was reprised in the 1972 Amendments

to the Act. 118 Cong. Rec. 2388-94, 2409-11 (Feb. 2, 1972);

Sen. Subcomm. on Labor of the Comm. on Labor and Public

Welfare, 92d Cong., Legislative History of the Equal Em-

ployment Act of 1972, at 1010, 1283, 1375. Those amend-

ments, among other things, lowered the numerosity require-

ment from 25 to 15. The Report accompanying the amend-

ments specifically describes the change to the numerosity

requirement as “changing the jurisdictional reach of Title

VII.” H.R. Rep. No. 92-238, at 20 (1971) (emphasis added).

Congress plainly did not intend to subject small employers to

Title VII enforcement and liability, and in sparing them the

financial and other burdens related to that federal regulation,

did not provide federal courts with adjudicative authority

over these employers.

Congress amended Title VII again in 1991. See P.L. 102-

166, 105 Stat. 1071 at §§ 2,3. By that time, the First, Fourth,

Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits all

had held that Title VII’s numerosity requirement was juris-

dictional.? Congress is presumed to be aware of those cases.

* See Thurber v. Jack Reilly's, Inc., 717 F.2d 633, 635 (ist Cir.

1983); Woodard, 598 F.2d at 1346; Dumas v. Town of Mount

Vernon, 612 F.2d 974, 976-977 (Sth Cir. 1980); Armbruster v.

Quinn, 711 F.2d 1332, 1334 (6th Cir. 1983); Hassell v. Harmon

Foods, Inc., 454 F.2d 199, 199 (6th Cir. 1972); Zimmerman v.

North Am. Signal Co., 704 F.2d 347, 350 (7th Cir. 1983); Childs v.

Local 18, Int'l Bhd. of Elec. Workers, 719 F.2d 1379, 1382 (9th -

Cir. 1983); Owens v. Rush, 636 F.2d 283, 285-286 (10th Cir.

1980); McKenzie v. Davenport-Harris Funeral Home, 834 F.2d

ll

Cannon v. University of Chicago, 441 U.S. 677, 697 (1979)

(the Court is “especially justified in presuming” that Con-

gress is aware of judicial interpretations of an existing statute

and adopts that interpretation when it enacts a new statute

patterned after the existing one); see also Lorillard v. Pons,

434 U.S. 575, 581 (1978). Congress’s failure to indicate any

contrary idea about the jurisdictional limits of the Title Vil

statute in its substantial 1991 amendments speaks volumes.‘

Congress thus plainly was motivated in Title VII and in

the later rounds of amendments to the statute to protect and

preserve small employers’ financial and associational inter-

ests. And Congress advanced that firmly stated purpose by

expressly exempting those employers from Title VII scrutiny.

The most natural reading of the statute coupled with its

legislative history is that the exemption Congress crafted for

930, 932-933 (11th Cir. 1987). Only the Third Circuit had ruled

that the numerosity issue went to the merits. See Martin v. United

Way of Erie County, 829 F.2d 445, 447 (3d Cir. 1987).

More recently, the Seventh Circuit abandoned its earlier view in

favor of a merits-based reading. See EEOC v. The Chicago Club,

86 F.3d 1423, 1428-29 (7th Cir. 1996). And the Eleventh Circuit

has issued conflicting opinions. Compare Lyes v. City of Riviera

Beach, 166 F.3d 1332, 1340-41 (1ith Cir. 1999) (en banc) (Title

VII numerosity requirement is jurisdictional), with Garcia v.

Copenhaver, Bell & Assocs., 104 F.3d 1256, 1266 (11th Cir. 1997)

(ADEA numerosity requirement is part of merits).

* Also against this backdrop, Congress included 2 nearly identi-

cal numerosity requirement in the Americans with Disabilities Act,

42 U.S.C. § 12111(S)(A) in 1990, and incorporated Title VII's

remedial scheme, including the formal grant of federal-court

jurisdiction in § 706(f)(3). See 42 U.S.C. §12117(a). Congress

similarly described the effect of the Family Medical Leave Act's

nearly identical numerosity requirement as “exempti[ng] * * *

employers” below the requirement. H.R. Rep. 101-28, Part 1, at

24 (1989).

12

small businesses goes to the jurisdiction of the courts. For

construing the numerosity issue as a jurisdictional prerequi-

site—not an element of a plaintiff's proof on the merits—

confers on small businesses the opportunity to exit litigation

early if no jurisdictional basis for the suit exists, and in addi-

tion (as is the situation here) the opportunity to obtain dis-

missal on jurisdictional grounds at a later stage. Reading

Title VII to afford small employers opportunities for early

dismissal from litigation, as well as the flexibility to raise the

jurisdictional issue later if necessary, best comports with the

legislators’ desire to thoroughly and effectively insulate

small businesses from the burdens of defending federal

discrimination lawsuits. See Jeffrey A. Mandell, The Proce-

dural Posture of Minimum Employee Thresholds in

Federal Antidiscrimination Statutes, 72 U. Chi. L. Rev.

1047, 1064 (2005) (“A reading of Congress’s intent as the

protection of small business from federal regulation is consis-

tent with interpreting the minimum employee threshold as

establishing a jurisdictional prerequisite.”’).

3. It is also telling that Congress in the 1972 Amendments

to Title VII viewed the change in the statute’s definition of

“employer” —dropping the numerosity requirement from 25

to 15—as expanding the EEOC’s jurisdiction over Title VII

discrimination claims. See, e.g., S. Rep. No. 92-415, at 8-9

(1971); H. Rep. No. 92-238, at 1 (amendments would

“broaden jurisdictional coverage’); id. at 64 (“if [EEOC]

jurisdiction is thus extended”); id. at 70 (bill “expands the

jurisdiction of the EEOC”). Given that a civil action can

only follow an EEOC charge, 42 U.S.C. § 2000e-5(f)(2), the

EEOC’s jurisdiction to prevent unlawful employment prac-

tices is directly relevant to whether the federal courts in turn

have jurisdiction over a civil action arising out of the EEOC

charge.

The EEOC and this Court have both stated that the EEOC’s

jurisdiction to investigate complaints is limited to employers

with greater than 15 employees. See, e.g., EEOC v. Com-

13

mercial Office Prods. Co., 486 U.S. at 119 n.5 (“Title VII

does not give the EEOC jurisdiction to enforce the Act

against employers of fewer than 15 employees * * *.”) (cit-

ing 42 U.S.C. § 2000e(b)); EEOC Decision No. 77-32, 1977

WL 5352, at *1 (Aug. 16, 1977) (EEOC has jurisdiction

because respondent “employs more than fifteen employees

and affects interstate conumerce”).° The EEOC’s jurisdiction

plainly should be viewed as coextensive with the jurisdiction

of the federal courts. It simply would make no sense for

Congress to confer on the federal courts greater jurisdiction

to hear discrimination claims than the jurisdiction of the

EEOC—the required first stop for all Title VII litigants.

Ili. THIS COURT’S PRECEDENTS SUPPORT THE

CONCLUSION THAT TITLE VII’S' EM-

PLOYEE NUMEROSITY REQUIREMENT IS A

JURISDICTIONAL LIMITATION.

This Court has heard and resolved two separate cases in

which a Title VII claim came before the Court after having

been dismissed for lack of subject matter jurisdiction. And

the Court resolved each without so much as raising an eye-

brow on the jurisdictional issue. Although the Court did not

directly address the jurisdictional issue presented here in

either of those cases, “weighty inferences” are appropriately

* See also, e.g., Auld v. Law Offices of Cooper, Beckman &

Tuerk, 1992 WL 372949, at 1 (4th Cir. Dec. 18, 1992) (EEOC

“denied jurisdiction because it found that [defendant] possessed

fewer than 15 employees during the relevant time period.”); Mo-

chelle v. J. Walter Inc., 823 F. Supp. 1302, 1307 (M.D. La. 1993)

(EEOC found “no jurisdiction to hear the plaintiffs ADEA com-

plaint because [defendant] did not have the requisite 20 employees

required by 29 U.S.C. § 630(b).”), aff'd, 15 F.3d 1079 (Sth Cir.

1994); Fike v. Gold Kist, Inc., 514 F. Supp. 722, 725 (N.D. Ala.)

(EEOC dismissed charge “for lack of jurisdiction” because defen-

dant “did not have 15 or more employees.”), aff'd, 664 F.2d 295

(11th Cir. 1981).

14

drawn from both decisions. Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 396 (1982).

——In Walters v. Metropolitan Educational Enterprises, 519

U.S. 202 (1997), the district court distu.issed a Title VII

complaint for lack of subject matter jurisdiction because the

employer did not satisfy the numerosity requirement. The

Seventh Circuit affirmed. The Supreme Court granted certio-

rari to determine the meaning of the phrase “has fifteen or

more employees for each working day in each of twenty or

more weeks”: Did an employer have an employee for any

working day in which the employee maintains an employ-

ment relationship with the employer, or only on those days

for which the employee received compensation from the

employer? /d. at 204° The Court held the former, adopting

what is known as the “payroll method” of determining how

many employees an employer had. /d. at 207.

For present purposes, the Court’s approach to the issue is

more significant than its holding. The Court examined pay-

roll receipts and other evidence in the record to determine the

number of employees, ruled that the defendant was in fact an

employer, and remanded the case for further proceedings. /d.

at 212; see also id. at 205 (holding that “Metropolitan was

subject to Title VII, however, only if, at the time of the al-

leged retaliation, it met the statutory definition of ‘em-

ployer’). Once the Court adopted the “payroll method” for

counting employees, of course, it could have remanded the

case to let the jury decide if the defendant was an “em-

ployer.” But it did not; instead it undertook and resolved that

threshold inquiry itself. The Court’s approach thereiore is

consistent with the view that determining the number of

employees is a threshold jurisdictional question appropriately

resolved by a judge, not a substantive element to be decided

by a jury. And of course, had the Court perceived the nu-

merosity issue to involve one of the substantive elements of

Title VII, it might have reversed the dismissal for lack of

15

jurisdiction on that basis—not because it found the defendant

was an employer.

EEOC v. Arabian American Jil Company, 499 U.S. 244

(1991) (Aramco), similarly arrived at the Court after a district

court dismissed the plaintiffs Title VII claim for lack of

jurisdiction and the state law claims for lack of pendant

jurisdiction. /d. at 247. The EEOC argued in this Court that

“Title VII’s ‘broad jurisdictional language’ reveals Congress’

intent to extend the statute’s protections to employment

discrimination anywhere in the world.” Jd. at 249. This

Court rejected that notion, and its rationale is telling. The

Court looked to Title VII’s definitional section—in particu-

lar, to the definition of “employer”—and concluded that

Congress did not intend the EEOC’s jurisdiction to extend to

employers operating abroad. /d. at 252. The Aramco Court

did not treat the statute’s definition of “employer” as an

element of a Title VII claim relevant only to the merits of the

case; quite to the contrary, the definition formed a critical

aspect of its jurisdictional inquiry.°

Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982),

on which petitioner and the United States so heavily rely, is

not contrary to amici’s position. Zipes examined whether the

timely filing of an EEOC charge is a jurisdictional prerequi-

site, as opposed to a statute of limitations subject to waiver

and estoppel. /d. at 392-393. The Court found the timely

filing requirement non-jurisdictional for reasons particular to

that case and that requirement. First, the legislative history

of the timeliness requirement indicated that Congress viewed

it as a statute of limitations. /d. at 394. Second, Congress

modeled the timeliness requirement on the National Labor

Relations Act, which contains a statute of limitations for

® The holding in Aramco was superseded by statute. See Pub. L.

102-166, 10S Stat. 1071, § 109(a) (adding provisions relating to

employment in a foreign country, currently codified at 42 U.S.C.

§ 2000e(f)).

16

filing a charge rather than a jurisdictional restriction. Jd. at

395 n.11. And third, Congress previously had stated that the

EEOC filing requirement in the Age Discrimination in Em-

ployment Act—which in turn was modeled on Title VII's

requirement—was “not a jurisdictional prerequisite” and was

subject to “equitable modification.” Jd.

Here, as shown above, congressional intent cuts just the

opposite way, and supports a finding that the numerosity

requirement is a categorical exemption for small employers

that prevents a district court from taking jurisdiction over a

Title VII case against them.

IV. PRACTICAL CONSIDERATIONS SUPPORT

CONGRESS’S DECISION TO MAKE NUM-

EROSITY A JURISDICTIONAL LIMITATION,

1. It makes good sense to determine numerosity at the out-

set of Title VII litigation. Small businesses face unique and

substantial challenges in defending federal discrimination

lawsuits. Many small businesses on the Title VII numerosity

“bubble” are truly hand-to-mouth operations; indeed, seven

out of ten small business owners start their business with

precious little capital—just over $18,000. William J. Dennis,

Jr., Business Starts and Stops, Wells Fargo/NFIB Series on

NFIB Education Foundation, at 3 (Nov. 1999), available at

http://www.nfib.com/attach/2429. Compare that start-up

money to the “average cost of defending an employment

discrimination suit, from the EEOC investigation process

through litigation,” which “is estimated to be $130,000.”

Steven A. Brehm, Note, Does EEOC v. Frank’s Nursery &

Crafts, Inc. Create an End Run Around Arbitration Agree-

ments?: Whether an Employee's Binding Arbitration Agree-

ment Precludes the EEOC from Seeking Back Pay and Dam-

ages on Behalf of the Employee, 39 Brandeis L.J. 693, 696

(2001); see also Aimee Gourlay & Jenell Soderquist, Media-

tion in Employment Cases is Too Little Too Late: An Organ-

izational Conflict Management Perspective on Resolving

17

Disputes, 21 Hamline L. Rev. 261, 286 (1998) (“the cost of

taking a discrimination case from complaint to trial in Cali-

fornia often reaches $300,000”). For a small enterprise, such

a massive outlay—potentially hundreds of thousands of

dollars to defend one case—threatens the business’s very

financial viability.

It also should go almost without saying that small busi-

nesses have far less access to legal resources than large

employers equipped with a full complement of in-house

counsel—not to mention outside counsel at their beck and

call. Lacking ample legal resources, many small businesses

are left to their own devices when navigating complex fed-

eral regulatory requirements and proscriptions. Many small

business owners “report that it can take 40 or more hours to

understand whether any given regulation applies to them.”

NFIB, Small Business Problems & Priorities at 6 (June

2004), available at http://www.nfib.com/attach/6155. NFIB

also has found that it costs business owners with fewer than

20 employees “about 60 percent more per employee in [fed-

eral regulatory] compliance costs than experienced by larger

firms.” Jd. at 9 (emphasis added). A similar recent study

funded by the United States Small Business Administration

found the same disproportionate impact. See W. Mark Crain,

The Impact of Regulatory Costs on Small Firms (Sept. 2005)

(concluding that it costs about 45 percent more for small

firms to comply with federal regulations than their larger

counterparts), available at http://www.sba.gov/advo/re-

search/rs264.pdf. An earlier study conducted by the Small

Business Administration in 2001, which had used a slightly

different methodology, concluded that the disproportionality

rate was even higher—nearly 60 percent. /d.; see also United

States Small Business Administration, Office of Advocacy,

Press Release: Small Business Hard Hit By Federal Regula-

tory Compliance Burden, New Study Shows Smallest Firms

Bear Largest Per Employee Burden (Sept. 19, 2005) (noting

that the 2005 study updated two earlier reports from 1995

and 2001, both of which also “showed similar patterns of

18

disproportionate regulatory burden bome by small busi-

nesses”), available at http://www.sba.gov/advo/press/05-

43.html.

It therefore is plainly in a small employer’s interest to have

questions about its susceptibility to a Tiile VII suit decided at

the threshold of federal litigation, thereby avoiding what

might otherwise be protracted involvement in a lawsuit and

its attendant legal and other costs. Treating numerosity as a

jurisdictional factor serves this important purpose. It permits

a court to inquire at the earliest possible stage into its juris-

diction over a Title VII dispute against a small employer and

to terminate that litigation right then, without further ado, if

the numerosity requirement is not met. And the numerosity

question is not a messy qualitative inquiry: it is a simple,

quantitative analysis, fully suitable for resolution before full-

blown discovery and without empanelling a jury. See

Grubart, 513 U.S. at 537-538 (“any litigation of a contested

subject-matter jurisdiction fact issue [can] occur[] in com-

paratively summary procedure before a judge alone (as dis-

tinct from litigation of the same fact issue as an element of

the cause of action, if the claim survives the jurisdictional

objection>”).

The alternative—a finding, as petitioner and the United

States urge, that numerosity is relevant only to the merits of a

Title VII claim—will subject small employers to extensive

litigation and discovery on each and every facet of a case

before the employers may be able to extricate themselves

from litigation on the simple ground that they are not within

the statute’s reach. If numerosity is an element of plaintiff's

proof rather than jurisdictional, and if some dispute exists

over whether a small business satisfies that requirement, a

judge alone may not preliminarily decide the issue.’ Rather,

” If the numerosity requirement is jurisdictional, a court resolv-

ing that issue need not assume that a plaintiff's allegations as to the

number of employees are true; it may permissibly inquire into the

19

any factual disputes relating to the number or kind of a small

business’s employees will be sent to a jury with the rest of

the case—far later in the process, of course, than would

otherwise apply if the requirement were a jurisdictional

prerequisite. The very businesses who least can afford to

litigate thus will expend more resources litigating, and will

potentially be forced to litigate claims for far longer, than if

the numerosity requirement were broached and resolved at

the threshold of the suit.

2. Deeming the numerosity requirement to be a jurisdic-

tional limit serves other important practical purposes as well.

If the numerosity requirement is jurisdictional, Title VII

plaintiffs will bear the burden of pleading that jurisdictional

fact at the very outset of the litigation. See FW/PBS, Inc. v.

Dallas, 493 U.S. 215, 231 (1990) (“{I]t is the burden of the

‘party who seeks the exercise of jurisdiction in his favor,’

‘clearly to allege facts demonstrating that he is a proper party

to invoke judicial resolution of the dispute.’ ”’) (citations

omitted). That threshold obligation will put sraall businesses

sued under Title VII—many of whom, as earlier noted, may

not be intimately or even superficially familiar with the

statute’s requirements—on notice that the number of em-

-ployees is critical to whether the court may even hear the

plaintiffs claims. Compare that to this case, where the

petitioner simply pleaded that federal jurisdiction existed

facts without viewing the evidence in a light favorable to either

party. See Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 77 (3d

Cir. 2003). But if the inquiry is wrapped up with the merits, a

plaintiff could survive a motion to dismiss—and thereby force a

small employer to suffer the financial expense of full-blown dis-

covery and a round of summary judgment motions—simply by

alleging that there are more than 15 employees. /d. And even at

the summary judgment stage, the court would have to view the

evidence in the light most favorable to the plaintiff, causing a

smal] employer to further endure the financial! costs of a full-blown

trial. Jd.

20

without any reference to the number of respondent’s employ-

ees.

3. Petitioner and the United States have raised various

practical concerns that they argue counsel against finding that

Title VII’s numerosity requirement is jurisdictional. Some of

their concerns are exaggerated; others simp!y are wrong.

a. Petitioner argues that Title VII’s merits issues may

sometimes be more easily resolved than the threshold nu-

merosity issue. See Pet. Br. 32; see also U.S. Br. 17. That

argument has two flaws, one factual and one legal. First, in

most cases, the jurisdictional determination whether the

numerosity requirement is met will be straightforward.® The

vast majority of employers either clearly have or clearly lack

15 employees—making limited fact-finding and discovery on

numerosity the exception, not the rule. The number of em-

ployees is an objectively verifiable fact.

Second, that a Title VII merits inquiry may appear “more

easily” resolved, U.S. Br. 17, cannot confer federal jurisdic-

tion where it does not exist. As this Court made clear in

Steel Company v. Citizens for a Better Environment, 523

U.S. 83 (1998), a court may not “assume” jurisdiction to

reach and resolve the merits of a case. To do so “carries the

courts beyond the bounds of authorized judicial action and

thus offends fundamental principles of separation of powers.”

Id. at 94. The requirement that jurisdiction be established as

a threshold matter before turning to the merits of a case

“ *spring[s] from the nature and limits of the judicial power

of the United States’ and is ‘inflexible and without excep-

® The merits of a Title VII case also are rarely as straightforward

as the petitioner and the Solicitor General suggest. A Title VII

merits case generally involves the well-known and often complex

McDonnell Douglas burden-shifting analysis, not to mention

multiple credibility determinations. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).

21

tion.’ ” Jd. (quoting Mansfield, C.&L.M.R. Co. v. Swan, 111

U.S. 379, 382 (1884)).

It also is in no way unique to Title VII that a case may oc-

casionally require factfinding to determine whether the facts

necessary to support jurisdiction exist. Other jurisdictional

factors created by Congress also entail factfinding in certain

cases—which is why the Courts of Appeals have unani-

mously concluded that it is proper to permit the limited

discovery necessary to resolve such narrow factual questions.

See Stefania A. Di Trolio, Comments, Undermining and

Unintwining: The Right to a Jury Trial and Rule 12(b)(1), 33

Seton Hall L. Rev. 1247, 1257-58 & n.80 (2003) (citing

cases). This is true across the board, no matter what sort of

jurisdictional fact is in dispute. See, e.g., Gualandi, 385 F.3d

at 244 (ERISA); Laub v. United States Dep't of Interior, 342

F.3d 1080, 1093 (9th Cir. 2003) (standing under National

Environmental Policy Act); Cirino-Encarnacion v. Concilio

De Salud Integral De Loiza, Inc. 317 F.3d 69, 70 (1st Cir.

2003) (Emergency Medical Treatment and Active Labor Act

and the Federal Tort Claims Act); Valentin v. Hospital Bella

Vista, 254 F.3d 358, 363-364 (1st Cir. 2001) (diversity juris-

diction); Goodman Holdings v. Rafidain Bank, 26 F.3d 1143,

1147 (D.C. Cir. 1994) (Foreign Sovereign Immunity Act);

see also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,

351 n.12 (1978) (noting the availability of discovery to ascer-

tain jurisdictional facts) (citing 4 J. Moore, Federal Practice

* § 26.56 [6] (2d ed. 1976); Land v. Dollar, 330 U.S. 731, 735

n.4 (1947) (court may inquire into jurisdictional facts when-

ever and however necessary); Note, The Use of Discovery to

Obtain Jurisdictional Facts, 59 Va. L. Rev. 533 (1973)).° As"

these cases and numerous others like them demonstrate, that

a particular fact may require preliminary discovery in no way

® The availability of limited jurisdictional discovery resolves

petitioner’s concern that a Title VII plaintiff may not have access

to numerosity information before filing suit. Pet. Br. 27.

22

answers whether Congress intended that that factual dispute

bear on jurisdiction or the merits.

b. Petitioner’s and the government’s second practical con-

cern with deeming the numerosity requirement jurisdic-

tional—that small-business defendants in Title VII cases

have an incentive to “sandbag” plaintiffs by waiting until

after trial to raise a jurisdictional defense—simply is not

realistic. Pet. Br. 34; U.S. Br. 18. There is no incentive—

none—for a small employer to wait to raise a jurisdictional

defense. Small businesses have every incentive, including

and especially a financial one, to curtail Title VII litigation at

the earliest possible stage. A small business therefore will

challenge numerosity at the earliest opportunity, except in the

most unusual circumstances (such as where, as here, it is not

apparent to the company at the pleading stage that it may not

meet the numerosity requirement). And even the anomalous

situation in which numerosity is not challenged at the first

opportunity does not change the analysis. “The age-old rule

that a court may not in any case, even in the interest of jus-

tice, extend its jurisdiction where none exists has always

worked injustice in particular cases. Parties often spend

years litigating claims only to learn that their efforts and

expense were wasted in a court that lacked jurisdiction.”

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,

818 (1988).

c. The Solicitor General also suggests that if the numeros-

ity requirement is jurisdictional, employers may fire employ-

ees to avoid Title VII litigation. That also is a hypothetical

disconnected from reality. See U.S. Br. 19. The majority of

circuits have viewed Title VII’s numerosity requirement as

jurisdictional for decades. See supra n.3 (citing cases). Yet

there has been no years-long epidemic of 16-employee busi-

nesses firing two workers in order to slyly avoid defending a

federal discrimination claim. And a small employer would

have no reason to fire one of its few employees to stave off a

federal claim when in most jurisdictions it would still be

23

subject to state claims. See Pet. Br. 36 (noting that many

state numerosity requirements are lower).

d. Finally, the government is wrong to suggest that if the

numerosity requirement is jurisdictional, every other defini-

tion and element of a Title VII claim would be “jurisdic-

tional” as well. U.S. Br. 13. The numerosity requirement is

unique within the statute, for whether an entity comes within

the statute’s definition of an “employer” determines whether

Congress intended it to have “complete immunity” and be

“expressly exempted” from the Act. Hishon v. King & Spal-

ding, 467 U.S. 69, 78 & n.11 (1984). The term “employer,”

in contrast to the other definitions the statute sets forth, is

crafted as a threshold and objectively verifiable prerequisite,

quite distinct (for example) from messy inquiries into the

motivation for a defendant’s particular employment prac-

tices. And as previously noted, this bright-line fact is similar

to the jurisdictional facts contained in numerous other stat-

utes. See supra at 5-8.

V. EVEN IF THE NUMEROSITY REQUIREMENT

WERE DEEMED NON-JURISDICTIONAL, A

DEFENDANT’S FAILURE TO CHALLENGE

NUMEROSITY AT THE OUTSET DOES NOT

NECESSARILY WAIVE THE ISSUE.

If the Court concludes—against Congressional intent and

the weight of authority—that Title VII’s numerosity re-

quirement is relevant only to the merits of a plaintiff's Title

VII claim, the Court should make clear that an employer’s

failure to raise numerosity at the very outset of the litigation

does not necessarily preclude the employer from raising the

issue later.

A Title VII plaintiff bears the burden of proving each and

every element of his or her claim. See, e.g., /nternational

Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977)

(recognizing “the general principle that any Title VII plaintiff

must carry the initial burden of offering evidence adequate to

24

create an inference that an employment decision was based

on a discriminatory criterion illegal under the Act”). If nu-

merosity is found to be an element of a plaintiff's Title VII

claim—and not a jurisdictional predicate—then the plaintiff

must prove numerosity to prevail.

In the District Court, Y & H Corporation denied plaintiff

Arbaugh’s allegations on the merits. See Pet. App. 46. To

prevail on her claim, then, Arbaugh had to prove every ele-

ment of her case—including numerosity. She presented no

evidence that the defendant satisfied this requirement, and

she therefore cannot prove her Title VII claim. See Mandell,

supra, at 1072 (“If a Title VII claim is to have any chance of

success, the number of employees must be determined,

whether as a jurisdictional prerequisite or as one of the merits

of the claim.”). Respondent should be permitted to raise this

deficiency in petitioner’s proof if this case is remanded on

grounds that the numerosity requirement goes not to jurisdic-

tion, but to the merits.'® A Title VII defendant cannot be said

to have “waived” any argument that the requisite number of

employees are lacking where the plaintiff has failed to put on

such evidence in the first place.

'° A Title VII defendant in this situation should be permitted to

avail itself of common law doctrines, such as excusable neglect, to

raise the issue at a proceeding’s later stage if that becomes neces-

sary. See generally, e.g., Charles Alan Wright, ef a/., 11 Fed. Prac.

& Proc. Civ. 2d § 2858 (2005).

25

CONCLUSION

For the foregoing reasons, the judgment below should be

affirmed.

ROBIN S. CONRAD

ROBERT COSTAGLIOLA

NATIONAL CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

KAREN R. HARNED

ELIZABETH GAUDIO

NATIONAL FEDERATION

OF INDEPENDENT BUSINESS

LEGAL FOUNDATION

1201 F Street, N.W.

Suite 200

Washington, D.C. 20004

(202) 406-4443

* Counsel of Record

Respectfully submitted,

CATHERINE E. STETSON *

JESSICA L. ELLSWORTH

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5491

Counsel for Amici Curiae

xg wore > Saud.)

| FIDRM

© | OCT 27 2005 |

No. 04-944 OFFICE OF THE Ci Peat

IN THE

Supreme Court of the Anited States

JENIFER ARBAUGH, PETITIONER,

v.

Y & H CORPORATION, D/B/A

THE MOONLIGHT CAFE, RESPONDENT.

On Writ Of Certiorari To The United States

Court Of Appeals For The Fifth Circuit

BRIEF FOR THE INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

HENRY W. UNDERHILL, JR. GENE C.SCHAERR

LANI L. WILLIAMS Counsel of Record

International Municipal STEFFEN N. JOHNSON

Lawyers Association JEFFREY M. ANDERSON

1110 Vermont Ave., N.W. Winston & Strawn LLP

Suite 200 1700 K Street, N.W.

Washington, DC 20005 Washington, D.C. 20006

(202) 466-5424 (202) 282-5000

LINDA T. COBERLY

Winston & Strawn LLP

35 West Wacker Drive

Chicago, Illinois 60601

(312) 558-5600

Counsel for Amicus Curiae

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

QUESTION PRESENTED

Whether the 15-employee requirement of Title VII is a

limitation on the subject matter jurisdiction of the federal

courts.

il

TABLE OF CONTENTS

Ge nS FI TOTP crcriernissosncennceninnpeegncenntnemenspiemennennannenins i

RE FT BOUTS I tet cicseatncienniennsvisatenissninmneventeniasacient iii

BUTE OO} ARICLLS CURIA... cccococsscosescescescccevessvescscosssoseoeses 1

aI scnncnnscvssnsstinibniesiiniitinshitacsbindiinidantinteetntitvipianmemeavtcnaainin 2

i Fe: Eee ET 3

FETE diretiihidenticetasntganinetiminiiseinntinantamnimnnninaneninmntents 5

I. The Text, Structure, and Purpose of Title VII All

Demonstrate that the 15-Employee Requirement

of Section 701(b) Is Jurisdictional. ...............cccccceeeeeesees 5

A. This Court's Section 1983 Decisions Confirm

that in the Context of Federal Civil Rights

Legislation, Limitations on the Class of Entities

Subject to Liability Are Jurisdictional. ..................:0000 7

B. The Canon that Statutes Should Be Interpreted

to Avoid Constitutional Difficulties Resolves

Any Doubt in Favor of a Jurisdictional Reading

of Title VII’s 15-Employee Requirement. ...................: 13

Il. Reading Title VII's 15-Employee Requirement as

a Threshold Jurisdictional Issue Vindicates

Congress's Intention to Shield Small Employers

from the Practical Burden and Expense of Title

WEE ED: scxsconniaittistsiinanpeitvenianianectaibeataoavetsnenmeanesie 18

SN Siccrincnensesenpeseiucatittinninsiciiiaptieenstntninineainvarctnineinseienince 25

iii

TABLE OF AUTHORITIES

Page

CASES:

Aldinger v. Howard, 427 U.S. 1 (1976).........:c:scese000 4,8, 9, 18, 19

American Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167 (1990)..12

Bristol v. Board of County Comm'rs, 312 F.3d 1213 (10th Cir.

SD stcintiassiistnitsasieneusniiieaibaedestieenbabolaiininapebeniaenienivnacinentiitnine 2

Buckhannon Bd. & Care Home, Inc. v. West Va. Dep’t of Health

& Human Res., 532 U.S. 598 (2001).........cscsssssssserseesesenees 22

City of Kenosha v. Bruno, 412 U.S. 507 (1973) .......cc:c2ceeesees 7,8,9

Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440

See chcsihsniinsihsitendecpéciepainonccigndsselosptiiubvekaniinldetbbiotsinsieia 19, 20

Crawford v. Runyon, 37 F.3d 1338 (8th Cir. 1994) .........cccsee 21

EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991)....17, 18

Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr.

Trades Council, 485 U.S. 568 (1988) ...........csccsceseeceseneesseeees 13

ExxonMobil v. Allapatah, 125 S. Ct. 2611 (2005) .........cccseesevees 10

Finley v. United States, 490 U.S. 545 (1989)........cccseseseeseseneenees 10

Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993)..........+. 17

Hayden v. First Nat'l Bank, 595 F.2d 994 (5th Cir. 1979).......... 21

Henderson v. Jantzen, Inc., 719 P.2d 1322 (Ore. App. 1986)....21

Hishon v. King & Spalding, 467 U.S. 69 (1984)........ 3, 5, 7,12, 25

Holmes v. Bevilacqua, 774 F.2d 636 (4th Cir. 1985)... 21

Intel Corp. v. Advanced Micro Devices, 124 S. Ct. 2466 (2004) .23

Jones v. United States, 529 U.S. 848 (2000)...........:cccccsssseseeceeesees 15

iV

Cases (Continued)

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994) .....13, 23

Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir. 1985) ............ 21

Lyes v. City of Riviera Beach, Fla., 166 F.3d 1332 (11th Cir.

GIO asicecsnssncseinsnsstane:scenieninchicsiienasbentsteladasebenniimmalniiagaed 1

Marzano v. Computer Sci. Corp., 91 F.3d 497 (3d Cir. 1996)....21

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ...20, 21

McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir. 1982)... 21

McNutt v. General Motors Acceptance Corp., 298 U.S. 178

GRIND. ncnossenscccessoonsenecienenccsinstosteinniojieninpinesebeaneeiaiiaiannneaiiaal 23

Miller v. Maxwell's Int'l Inc., 991 F.2d 583 (9th Cir. 1993) ......20

Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274

EIDE TP nxcctcecnccnctiiansetccstnnesinnsegiensentsejabemeiahianiseeiainiaaiaaaiabinn 9

Mulhall v. Advance Sec., Inc., 19 F.3d 586 (11th Cir. 1994)......21

Oden v. Oktibbeha County, Miss., 246 F.3d 458 (5th Cir. 2001) .2

Orr v. City of Albuquerque, 417 F.3d 1144 (10th Cir. 2005)......21

Papa v. Katy Indus., Inc., 166 F.3d 937 (7th Cir. 1999) .......10, 20

Powers v. Dole, 782 F.2d 689 (7th Cir. 1986) ..........:cccceeseseseses 21

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ...........::ccc0e0 21

Rogero v. Noone, 704 F.2d 518 (11th Cir. 1983).........ccccccessesesesees 2

Rosen v. Thornburgh, 928 F.2d 528 (2d Cir. 1991) ..........ccee0e0 21

Sandoval v. City of Boulder, 388 F.3d 1312 (10th Cir. 2004).......2

Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46

SRG. TIIIIID assccuiscscscnscccnesasstitehtacnctaseieulinstingiasiediiduseebilais 21

Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555 (6th Cir.

SIT .cersccesininensecotetitcintiesicinedaactiittadeiticianmeuniaaiaidadill 11, 21

Solid.Waste Agency of No. Cook County v. United States Army

Corps of Eng’rs, 531 U.S. 159 (2001)... 13, 14, 15, 16

Cases (Continued)

Texas Dep't of Cmty. Affairs v. Burdine,

inci tinenineinrtatianitn tients 5, 11, 20, 21

Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995)

ES CEDIA Oa Ta Oo On TE 15, 18, 19, 20

United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942 (7th

ENIAC 0 a aa 17

United States Catholic Conference v. Abortion Rights

Mobilization, Inc., 487 U.S. 72 (1988) ...........cccsccesceeeeereneees 23

United States Postal Serv. Bd. of Governors. v. Aikens, 460 U.S.

ESSE EIN 5, 11, 20

United States v. Lopez, 514 U.S. 549 (1995) 0.0... cccccseeeeeees 14,15

United States v. Morrison, 529 U.S. 598 (2000)... 14,15

Walters v. Metropolitan Educ. Enters., Inc.,

EE 10, 11, 24

Zipes v. Trans World Airlines, Inc.,

ee 3, 6, 11, 12, 19

CONSTITUTION, STATUTES, AND RULES:

U.S. Const. art. I § 8, cl. 3 (Commerce Clause).................00000 14

Civil Rights Act of 1964, Tit. VIL, 42 U.S.C. § 2000e et seq.:

I tere eda ceneaaisinminmmieententnnes 1

Es 1, 2, 6, 12, 15, 23

Bs I cxe crtncencenteemnasinnreasuemnneansasntinentel 6, 15, 23

SI nricescirincinnceninbeennestninnpseenansceesnnmmabenasion 2

ce csr ccicerriensidennicnpccnmmtenesnsemnssecessntmnnanesed 6

Equal Opportunity Act of 1972, Pub. L. 92-261, § 2, 86 Stat.

vi

Constitution, Statutes, and Rules (Continued)

ee IE serrtcineicacibiitionmnnasnginnmmmnnmnniineial 15

Be iar OF SI cctecncnestlicitanissiicthahaehinecinanmnnnaniinginnnitctgniceansenmaiiciininiis 9

ee tas Oe seirectpintttinaicliiiiseiinieticnmsinshigiineniaiinegusniientieanii 7,8,9

ae i ecidicchincttnasntigcniccessesttccrntiscenteipnacdioced 4,7,8, 9,10, 12

Re UNG I Wi eiicitninnicecthisnnsedcinttnditetecinenrictctcanevinicinnnienntinnnnbaianiiiaia 23

a See as i checicienitensnitomncernnssentintinieniemanpiiieemenieedbinsiel 23

MISCELLANEOUS:

110 Cong. Rec. (1964)

a ey ED SE itnnciiceanescenicentcacsnsescinisnenctinioniapannniy 16

ee ee aitibccniunintsnmsiniinpiinpeinininsinsnaniibutl 16

ee RE cccrtirterttencnstsicenneceinpcssinioneatniantinnmtiaateaniaies 16

ic dsteiatasibabeniesittteabtrenncspniatdiiatassnninstpneciniatintantiingsiei 19

H.R. Rep. No. 914, 88th Cong., Ist Sess. (1963)... 14

Legislative History of Titles VII and XI of the Civil Rights

Act of 1964, U.S. Equal Employment Opportunity

Se eisetntetiercintecanseseineeapiscninttneestietmnenapioniees 14

Michael A. Pagano & Christopher Hoene, City Fiscal

Conditions in 2004 (National League of Cities 2004). .......22

INTEREST OF AMICUS CURIAE

The International Municipal Lawyers Association

(“IMLA”) is a _ nonprofit, nonpartisan professional

organization with more than 1,400 members. IMLA’s

membership comprises local governmental entities

(including cities, counties, and subdivisions thereof) as

represented by their chief legal officers; state municipal

leagues; and individual attorneys who _ represent

municipalities, counties, and other entities of local

government. IMLA, previously known as the National

Institute of Municipal Law Officers, has provided services

and educational programs to local governments and their

attorneys since 1935. IMLA is the oldest and largest

association of attorneys representing municipalities,

counties, and special districts in the United States. IMLA

frequently files briefs in this Court in cases involving

matters that affect state and local governments. !

IMLA is greatly concerned about maintaining Title VII's

15-employee requirement as a limitation on the subject

matter jurisdiction of the federal courts. Title VII's

definition of “employer” extends to governmental agencies

and political subdivisions of States. 42 §§ U.S.C. 2000e(b),

2000e(a). Municipal and county governments, however, are

not generally treated as “unitary” employers for purposes of

the statute.2 Thus, plaintiffs may not “take a headcount of

' The parties have consented to the filing of this brief; their letters

of consent are on file with the Clerk. In accordance with Rule 37.6,

the amicus states that no counsel for any party has authored this

brief in whole or in part, and no person or entity, other than the

amicus, has made a monetary contribution to the preparation or

submission of this brief.

2 See, e.g., Lyes v. City of Riviera Beach, Fla., 166 F.3d 1332, 1344-1345

(11th Cir. 1999) (en banc) (holding that a city and its community

redevelopment agency were not a single employer under Title VII

all county [or city] employees” in determining whether one

of its agencies (e.g., the tax collector) satisfies the 15-

employee requirement for an “employer” for purposes of

Title VII. See Rogero v. Noone, 704 F.2d 518, 520 (11th Cir.

1983). Inasmuch as the component agencies of counties and

municipalities frequently have fewer than 15 employees,

they routinely find themselves responding to Title VII

lawsuits on their own—with limited human and financial

resources to mount a defense. Properly interpreting Title

VII's employee numerosity requirement as jurisdictional —

as the Fifth Circuit did here~is critical to ensuring that

these limited taxpayer-provided resources are not

improperly spent on costly discovery battles rather than the

provision of critical public services.

STATEMENT

Title VII makes it unlawful for an “employer” to “fail or

refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of

employment, because of such individual's race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

The statute exempts from coverage a number of entities,

including agencies of the United States, Indian tribes, and

small employers— those with fewer than 15 employees. 1d.

§ 2000e(b).

and noting the “presumption that governmental subdivisions

denominated as separate and distinct under state law should not

be aggregated for purposes of Title VII"); Oden v. Oktibbeha

County, Miss., 246 F.3d 458, 465 (Sth Cir. 2001) (a county and its

sheriff were not a single employer); Bristol v. Board of County

Comm'rs, 312 F.3d 1213, 1217-1221 (10th Cir. 2002) (en banc) (a

board of county commissioners and the county sheriff were not a

single employer); Sandoval v. City of Boulder, 388 F.3d 1312, 1322-

1223 (10th Cir. 2004) (a city and its regional communications

center were not a single employer).

Petitioner, the plaintiff in this case, contends that she

was subjected to sexual harassment and constructively

discharged from her position as a waitress and bartender at

the Moonlight Café, in violation of Title VII's prohibition on

sex discrimination. After a trial on the merits, respondent

moved to dismiss the action for lack of subject matter

jurisdiction. Respondent argued that it had fewer than 15

employees during the relevant time period, such that the

action fell outside the jurisdiction of the federal courts. The

district court agreed and granted the motion, and the Fifth

Circuit affirmed that decision. This Court subsequently

granted certiorari to review the question whether the 15-

employee requirement of Title VII is jurisdictional or simply

an element of the plaintiff's cause of action.

SUMMARY OF ARGUMENT

In Hishon v. King & Spalding, 467 U.S. 69, 78 (1984), this

Court observed that when Congress exempted businesses

with fewer than 15 employees from Title VII, it granted

them “complete immunity” from the statute. This case

presents the question whether this “complete immunity” is

simply an exemption from liability or rather, as we contend,

a jurisdictional requirement.

I. “The structure of Title VII, the congressional policy

underlying it, and the reasoning of [this Court's] cases... . all

lead to th[e] conclusion” that the 15-employee requirement

of Title VII is jurisdictional. See Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 393 (1982). As an initial matter, Congress

placed the term “employer” in the preamble of § 703(a)—

separate from the description of conduct for which

employers may be found liable. The determination whether

a defendant is among the class of entities to whom the statute

applies thus logically precedes inquiry into the merits of the

claim of discrimination and should be decided at the outset

of the case, along with any other jurisdictional matters.

4

In civil rights cases arising under 42 U.S.C. § 1983, this

Court has taken exactly that approach: Unless the

defendant is a covered “person” within the meaning of

§ 1983, the Court has held that courts lack jurisdiction to

hear the plaintiff's claims. See, e.g., Aldinger v. Howard, 427

US. 1, 17 (1976).

Such an approach to cases under Title VII, a related

body ci federal civil rights law, accords with the

congressional policy that underlies Congress’s exemption of

small employers. The legislative history demonstrates that

Congress sought to protect such entities—which include

many local agencies with limited resources—not only from

Title VII liability, but also from the burden of having to

defend themselves against fact-intensive Title VII claims.

Were there any doubt that the 15-employee requirement

is more than simply an element of the plaintiff's case, settled

principles of statutory interpretation would resolve that

doubt in favor of a jurisdictional reading of § 701(b).

Congress relied on its commerce power in enacting Title VII,

and it understood the minimum-employee requirement as a

means of respecting the limits of that power. Where a

reading of a statute raises significant constitutional

questions, the Court requires a clear indication that

Congress intended that result. There is no such indication

here. To the contrary, the legislative record reveals

wid espread concern that small businesses’ activities did not

substantially affect commerce within the meaning of this

Court's precedents. The questionable validity of a broader

reading of Title VII confirms that this Court should read the

15-employee requirement as jurisdictional.

ll. A jurisdictional reading of the numerosity

requirement also vindicates Congress's desire to spare small

employers the burden of defending Title VII claims—thus

preserving their ability to compete or, in the case of

municipalities and counties, to provide public services.

Early resolution of the threshold question whether the

defendant enjoys “complete immunity” from suit protects

defendants fiom the costs of investigating claims,

conducting discovery, and preparing witnesses—costs that

can mcst easily be avoided under a jurisdictional reading of

the 15-employee requirement. For small businesses, this can

mean the difference between staying afloat and bankruptcy.

For local governments, it can mean the difference between

meeting or failing to meet vital public needs.

Litigating Title VII claims is expensive, in part because

such claims turn so often on questions of intent. As this

Court has acknowledged, “the elusive factual question of

intentional discrimination” (Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 256 n.8 (1981)) is “both sensitive and

difficult” and cannot generally be answered by direct

evidence (United States Postal Serv. Bd. of Governors. v. Aikens,

460 U.S. 711, 716 (1983)). Summary judgment is thus

relatively rare in Title VII cases, and a nonjurisdictional

reading of the numerosity requirement would create

tremendous pressure to settle even meritless claims.

Indeed, the Solicitor General acknowledges that

Congress was “concerned that including all small businesses

in the scope of Title VII would impose bureaucratic and

litigation costs that sma.l companies could not bear.” U.S.

Br. 24 n4. But he provides no convincing reason why

Congress would subject such employers to the tremendous

burden of mounting a defense to claims under a statute that

grants them “complete immunity.” Hishon, 467 U.S. at 78.

ARGUMENT

Il. The Text, Structure, and Purpose of Title VII All

Demonstrate that the 15-Employee Requirement of

Section 701(b) Is Jurisdictional.

Whether Title VII's requirements limit the courts’ subject

matter jurisdiction or, instead, are garden-variety elements