Amicus Curiae Brief — Ledbetter v. Goodyear Tire & Rubber Co., Inc.

4 "Supreme Court, U.S. ~

Or\

FILED i

No. 05-1074 : pts 31 2638 |

Sa Che | OFFICE OF THE CLERK.

Supreme Court of the United States

.

LILLY M. LEDBETTER,

Petitioner,

Vv.

GOODYEAR TIRE AND RUBBER COMPANY, INC.,

' Respondent.

a

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

+

BRIEF FOR THE NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION, THE LAWYERS’

COMMITTEE FOR CIVIL RIGHTS UNDER LAW,

THE ASIAN AMERICAN JUSTICE CENTER, THE

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, AARP AND THE LEGAL AID

SOCIETY - EMPLOYMENT LAW CENTER AS AMICI

CURIAE IN SUPPORT OF PETITIONER

e

JOHN BRITTAIN JOSEPH M. SELLERS

MICHAEL FOREMAN Counsel of Record

SARAH CRAWFORD CHRISTINE E. WEBBER

ADAM STOFSKY COHEN, MILSTEIN, HAUSFELD &

LAWYERS’ COMMITTEE FOR TOLL, PLLC

CiviL RIGHTS UNDER LAW 1100 New York Avenue, NW,

1401 New York Avenue, NW, Suite 500

Suite 400 Washington, DC 20005

Washington, DC 20005 _ (202) 408-4600

(202) 662-8600 JAMES M. FINBERG

TERISA E. CHAW Eve H. CERVANTEZ

EXECUTIVE DIRECTOR JAHAN C. SAGAFI

NATIONAL EMPLOYMENT PETER LECKMAN

LAWYERS ASSOCIATION DANIEL HUTCHINSON

44 Montgomery Street LIEFF CABRASER HEIMANN &

Suite 2080 BERNSTEIN, LLP

San Francisco, CA 94104 275 Battery Street, 30th Floor

(415) 296-7629 San Francisco, CA 94111

(415) 956-1000

[Additional Counsel Listed On Inside Cover]

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

AIMEE J. BALDILLO

ASIAN AMERICAN JUSTICE CENTER

1140 Connecticut Avenue, NW

Suite 1200

Washington, DC 20036

(202) 296-2300

DENNIS COURTLAND HAYES

NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE

4805 Mt. Hope Drive

Baltimore, MD 21215

(410) 580-5797

THOMAS W. OSBORNE

DANIEL B. KOHRMAN

LAURIE A. MCCANN

AARP FOUNDATION LITIGATION

MELVIN RADOWITZ

AARP

601 E Street, NW

Washington, DC-20049

(202) 434-2060

PATRICIA A. SHIU

SHELLEY A. GREGORY

SHARON TERMAN

THE LEGAL AID SOCIETY

EMPLOYMENT LAW CENTER

600 Harrison Street, Suite 120

San Francisco, CA 94107

(415) 864-8848

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIEG.................cccecceseeseeeeereeees ii

INTEREST OF AMICI CURIAE .........:0cccccceeeeeeeseeeees 1

SUMMARY-.OF ARGUMENT. .............::ccccceeeeeeeeeeeeenes 2

IIE eccnininsovenscsccnssscccsnccesssessenpeventessonnnsonasensess 2

I. EACH PAYCHECK THAT COMPENSATES A

CHARGING PARTY LESS THAN SIMI-

LARLY SITUATED EMPLOYEES BECAUSE

OF SEX VIOLATES THE PLAIN LAN-

GUAGE OF SECTION 706(e) OF TITLE VII

AND ESTABLISHED PRECEDENT OF

DERE COTTIER ccnecccrcserscccecesccsccnscvsenssvencessecensses 3

A. Title VII Authorizes Petitioner to Chal-

lenge Disparities in Each Paycheck Re-

ceived During the Time Period Covered

Beer Blew CORD 2200 000ccccccccsccccccsossseones Ssechemaie 4

B. The Courts of Appeal Have Uniformly Held

That Each Paycheck Is a New Violation of

Title VII and Congress Ratified This Rule in

the Civil Rights Act of 1991.............::.cceeeeeee 9

C. The EEOC’s Interpretation of § 706 -

That Each Paycheck Constitutes a Dis-

crete Act — is Fully Consistent With the

Language of Title VII, Is Reasonable and

Consistent With Legislative Intent, and

Warrants This Court’s Deference............. 12

D. The Issuance of Each Paycheck that

Compensates Similarly-Situated Men

and Women Differently May Reflect an

Intent to Discriminate ....................sees0e 16

i

TABLE OF CONTENTS - Continued

Page

Il]. TITLE VII WAS ENACTED AND AMENDED

AGAINST A BACKDROP OF STATUTORY

INTERPRETATION ALLOWING PLAIN-

TIFFS TO RECOVER FOR RECURRING

VIOLATIONS OF PAST WRONGG................. 21

A. Title VII Should Be Construed in Accor-

dance With Equal Pay Act Precedent

Holding That Each Paycheck Constitutes

oy PD siittcniccsccticinninmnemmnne 23

B. Congress Modeled Title VII’s Limitation

Period on the NLRA’s Limitation Period,

Which Allows Plaintiffs to Recover for

the Recurring Application of Violations

That Began Prior to the Limitations Pe-

SE siaciteetertncinpciniiaansisieniien ssilecaninginiaaaninentiivasons 25

C. The Treatment of Recurring Violations in

the Fair Labor Standards Act and Title

VII Should Be Paraliel........................000+. 27

ee ITE Siririptsccierccuienccinedsnutidnniientncnnennabaiion 30

ill

TABLE OF AUTHORITIES

Page

CASES

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ........ 25

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074

GE GI, FI ee cnicstcsiscncesctncnnrccenccpinnennsnsnccsnenvinnintnesebesninesne 17

Amft v. Mineta, Appeal No. 07A40116, 2006

EEOPUB LEXIS 1472 (E.E.0.C. Dec. Apr. 6,

Anderson v. Zubieta, 180 F.3d 329 (D.C. Cir. 1999)........ 8,9

Ashley v. Boyle’s Famous Curned Beef Co., 66 F.3d

BG Ga GI Bi ncccsctcsicccascncccsccescesecesessecesnseneniscssen 9, 24

Atlas Air, Inc. v. Air Line Pilots Ass’n, 232 F.3d 218

CIE. Ge FD vecicceccccssesecnsnsesvenconssenes Siesiilaeladiiiieienebseiibihes 22

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

Brenner v. Local 514, United Bhd. of Carpenters

Joiners of Am., 927 F.2d 1283 (3d Cir. 1991)................ 22

Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336

COs Cie BE vc cceccnsscccccnscccossccscocscscsevsevasessenssomeasooons 9, 24

Burlington N. & Santa Fe Ry. Co. v. White, 126

Be, Sk, Se IED vccisecnensnennstsnstcnssevsininemnessntaneesemavers 12,15

Byrne v. Telesector Res. Group, Inc., No. 04-CV-76S,

2005 WL 464941 (W.D.N_.Y. Feb. 25, 2005) ..............00+ 24

Calloway v. Partners Nat'l Health Plans, 986 F.2d

BE CE Ge BR vccccscsenncsacescncctennencssccsnesevnaresensncscssevies 9

Calvello v. Elec. Data Sys., No. OOCV800, 2004 WL

941809 (W.D.N.Y. Apr. 15, 2004), aff’d, 151 Fed.

Apox. 36 (2d Cir. 2006).................00rrrccccssvssssscsessenseeeeees 24

Cardenas v. Massey, 269 F.3d 251 (3d Cir. 2001)........... 8,9

iv

TABLE OF AUTHORITIES ~— Continued

Page

Columbus Board of Educ. v. Penick, 443 U.S. 449

CIP PINE cvsniussisecnsonnsninsnciensiioptipapenitadiioemiimiaidanannnmaal 20

County of Wash. v. Gunther, 452 U.S. 161 (1981)............. 23

Coward v. ADT Sec. Sys., Inc., 140 F.3d 271 (D.C.

RE FIO sscrccssninivactininussinniagintitieieccnainaai man 17

Davidson v. Am. Online, Inc., 337 F.3d 1179 (10th

GIRIR FRIED vcssceinccesacnnasscccnnsanseisanbenanetiaimiasmaaiaaaale 11

Di Salvo v. Chamber of Commerce of Greater Kan.

City, 568 F.2d 593 (Sth Cir. 1978) ...............cccccssccsesesees 24

Downes v. JP Morgan Chase & Co., No. 03 Civ.

8891(GEL), 2004 WL 1277991 (S.D.N.Y June 8,

SUI ED dissccesscsnintnosnmnniensniscnisiaiinenaabiiremeiiaiaidmamaaanias aa 24

Dunlop v. State of R.I., 398 F. Supp. 1269 (D.R.I1.

TIO <cxivsccsecsnnnsssvesiousdinctocssnbansammmisainisaiaaiaaan 28 .

EEOC v. Associated Dry Good Corp., 449 U.S. 590

CIID inccvssccossssosnscesenesstinseiedennnieiiiiensieisdeiedanaidsaiasiiaimamnann 11

EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263 (11th

- ) es sninceciecsisietsidtioetiessnsadeuieteimaeiilaimmanianna 18

Edelman v. Lynchburg Coll., 535 U.S. 106 (2002)............ 11

Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130

GE GR: ID sncnccivensucctsctntibinsdinteteamemmaanna 11

Erickson v. N.Y. Law Sch., 585 F.Supp. 209

GET IE. ie ROD ccncxnsescionisctintsmesieninatiaaniuasadainaiamaaaeaaa 24

Faragher v. City of Boca Raton, 524 U.S. 775 (1998)....... 11

Farmingdale Iron Works, 249 N.L.R.B. 98 (1980)............ 27

Forsyth v. Fed’n Employment & Guidance Serv., |

GED FBG GES CO Cae, BR ccescccssecescciconsenstssenetecasenisnin 11

Franks v. Bowman Transp. Co., 424 U.S. 747 (1976)....... 26

TABLE OF AUTHORITIES -— Continued

Page

Gandy v. Sullivan County, Tenn., 24 F.3d 861 (6th

ITT TT <n arian egandmanennnnsenesuesnenensnenesesossococss 24

Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976)............. 12, 15

Gonzales v. Oregon, 126 S. Ct. 904 (2006) ............fcccceeeee 12

Goodwin v. Gen. Motors Corp., 275 F.3d 1005 (10th

ine ceeenimaaaeeneninngnenanenerenenaTnenecensents 9,17

Griggs v. Duke Power Co., 401 U.S. 424 (1971).......... 12, 15

Gunther v. County of Wash., 623 F.2d 1303 (9th Cir.

1979), aff'd, 452 U.S. 161 (1981) ...........:cccceseeeeeeerererees 24

Hazelwood Sch. Dist. v. United States, 433 U.S. 299

EE nn 21

Hildebrandt v. Ill. Dep't of Natural Res., 347 F.3d

BOARS (Heir Cle, BOGE) ...cccccsccccccccccscccccsecccccccecccccscccscscsceeees 11

Hodgson v. Behrens Drug Co., 475 F.2d 1041 (5th

irate tnmnneinammentnanencageasanennesnetesse 22

Int'l Union, United Auto., Aerospace & Agric.

Implement Workers of Am., UAW v. Johnson Con-

trols, Inc., 499 U.S. 187 (1991)..........ccccccssessereeeseeeeeeenes 18

Katz v. N.L.R.B., 196 F.2d 411 (9th Cir. 1952).................. 26

Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997) ...........0 22

Knight v. Columbus, Ga., 19 F.3d 579 (11th Cir.

Scilla eile eatindinidinndgnidadnndnnpenennennnteqneneeneee 22, 28

Landgraf v. USI Film Prods., 511 U.S. 244 (1994)............. 9

Lavin-McEleney v. Marist Coll., 239 F.3d 476 (2d

aan cc iarhanimtemebanpenenntscnenenenqnssequcaeineses 23

Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d

BRD CRB Gir, BSE ccccccccccscccccccccscccccccccccccsccccceseoey passim

TABLE OF AUTHORITIES ~— Continued

' Page

Lorance v. AT&T, 490 U.S. 900 (1989)... cccccccceeeeeeeeeeee 8

Lyons v. Eng., 307 F.3d 1092 (9th Cir. 2002) .................... 11

McCrae v. Gutierrez, Appeal No. 01A53762, 2005

EEOPUB LEXIS 4298 (E.E.0.C. Dec. Sept. 9,

Sn ctcseccistcniesinitaticaiailditiieiiltaialealeniehaelieadi achicha 15

Melville Confections, Inc., 142 N.LRB. 1334

(1963), enforced, 327 F.2d 689 (7th Cir. 1964) .............. 27

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57

rere rete incncinsieusiiitinstentincaisitinaaetagsinieiinainaaiaasiinttianiaianiadiuatetieis 12

Miranda v. B & B Cash Grocery Store, dne.., 975

ee CR Ge FID ccccccocccecccsecnesesssstbeocanscnnonenses 17

Mitchell, Sec’y of Labor v. Lancaster Milk Co., 185

FF ee 28

Mohasco Corp. v. Silver, 447 U.S. 807 (1980)...............04. 26

N.L.R.B. v. Carpenters Local Union No. 1028, 232

IEEE TITIIE hs criteencinteisnsrebbbinbienisnaniniidiinlnids 26

N.L.R.B. v. FH. McGraw & Co., 206 F.2d 635 (6th

Siren, TUE iicsnesenstdenitentasnianmncctincatinaideintinimiibieleasdapcaibiadesihd 26

Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101

GED cnmnscnsvasceserscanensesnssenenmemneenecnamamnesmmnamnien passim

Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992)................... 24

Personnel Admin’r of Mass. v. Feeney, 442 U.S. 256

Sila hiiaaschieriemevaninesntntepintainsiipdiiaileinanmateliassinapsestintasiatataidiiaaiity 20

Pollard v. El. du Pont de Nemours & Co., 532 U.S.

ITT eriasiccsttsinctsitpnreiainataiiainatiasiiatanidieainaiathiaieadadntoin 26

Pollis v. The New Sch. for Social Research, 132 F.3d

IIIS, IIT hiscrt cence tase tineibcnlietteetcliliealinaieeiieaieameeial 24

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)........... 18

vil

TABLE OF AUTHORITIES — Continued

Page

Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007

LO) ae pceesiemncitainsnelansin 11

Shandelman v. Schuman, 92 F. Supp. 334 (E.D. Pa.

DIIID ..... cnsissencnincsseniaensintnasiastantanciabeninemneeinnaniamaciinits 28

Shea v. Rice, 409 F.3d 448 (D.C. Cir. 2005)..........-..:ccc00 11

Shultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir.

a 24

Skidmore v. Swift & Co., 323 U.S. 134 (1944)............ 12,15

Smith v. City of Jackson, 544 U.S. 228 (2005)............ 12, 15

Tademe v. Saint Cloud State Univ., 328 F.3d 982

en 11

The Kroger Co., 334 N.L.R.B. 847 (2001)........-.c.:cceeseeeeees 27

United Airlines v. Evans, 431 U.S. 553 (1977) .... 5, 19, 20, 21

Wagner v. NutraSweet Co., 95 F.3d 527 (7th Cir. 1996)........... 9

Williams v. Giant Food, Inc., 370 F.3d 423 (4th Cir. .

SID ccccccccesnanscsvstectecnessinensasatadantiiensicanmatseninmmnansianids 11

Zipes v. TWA, 455 U.S. 385 (1982)........-..:ccseceeeeeereeceesesens 25

FEDERAL STATUTES, REGULATIONS

AND LEGISLATIVE MATERIALS

Ol) 0d rr 25

29 U.S.C. § 206(d)(1) (2006) .........ceereeeeeereeeeees icabiienessadietie 23 ©

J! 2) 2 28

eb BE) Sl 28

Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a).........8

Section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e)........... passim

TABLE OF AUTHORITIES - Continued

Page

Section 706(g)(1) of Title VII,

ey tI inciiepictcenenininisncsisssiinaeniionatinniii 5

Pub. L. No. 102-166, 105 Stat. 1071 (1991).................. 9,10

8 18

136 Cong. Rec. S15376-01 (1990)....................cccccsssesseseeees 10

H.R. Rep. No. 92-238 (1971), as reprinted in 1972

U.S.C.C.A.N. 2137 (Minority Views)......................se00: 26

H.R. Rep. No. 101-644(ID) (1990).............cccccccececeeeeeeeeeeen es 10

H.R. Rep. No. 102-40(I) (1991), as reprinted in 1991

| LE EIR ser cones oF mee meee 10

H.R. Rep. No. 102-40(I]) (1991), as reprinted in

I ee 10

eB Gee DR errrecriscnrnscrncescnereninintintcnmsmnininesii 26

S. Rep. No. 101-315, 1990 WL 259315 (1990)................... 10

TREATISES AND OTHER AUTHORITIES

EEOC Compliance Manual § 10-III............................ 17, 19

EEOC Compliance Manual, “Threshold Issues:

Timeliness” § ES Aer enero we 13, 14, 16

22A Fed. Proc., L. Ed. § 52:1714 (2006) ................c0cccceeeees 28

Ellen C. Kearns, The Fair Labor Standards Act

5 Sey aan eae meer ornene 28

Douglas Laycock, Continuing Violations, Disparate

Impact in Compensation, and Other Title VII Issues,

49 Law & Contemporary Problems 53 (1986)..................+:. 21

2B Sutherland Statutory Construction § 53:1 (6th

SET, Siri cisenssestasaibccaittpasnsiatinicnenanieapdienbininiicsiaiindaioamaidais we 23

1

INTEREST OF AMICI CURIAE’

The National Employment Lawyers Association, the

Lawyers’ Committee for Civil Rights Under Law, the Asian

American Justice Center, the National Association for the

Advancement of Colored People, AARP and The Legal Aid

Society - Employment Law Center respectfully submit this

brief as amici curiae in support of Petitioner pursuant to

Supreme Court Rule 37.3(a), upon the consent of the parties.

Amici are interested in furthering the goal of Title VII

of the Civil Rights Act of 1964 to eradicate employment

discrimination. In this case, Amici seek to ensure that

longstanding interpretations of the civil rights laws are

not upended, and that workers will have a fair opportunity

to protect their right to equal pay for each day of equal

work during the limitations period. In an effort to assist

the Court in its interpretation of the laws aimed at elimi-

nating unlawful employment discrimination, Amici have

filed amicus briefs in Title VH cases including National

Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002),

Burlington Northern & Santa Fe Railway Co. v. White, 126

S. Ct. 1671 (2006); Pennsylvania State Police v. Suders,

542 U.S. 129 (2004); Desert Palace, Inc. v. Costa, 539 U.S.

90 (2003); Swierkiewicz v. Sorema N.A., 534 U.S. 506

(2002); Reeves v. Sanderson Plumbing Products, Inc., 530

US. 133 (2000); and Faragher v. City of Boca Raton, 524

U.S. 775 (1998).

Fuller statements of interest for all amici are included

in the appendix to this brief.

' The parties have consented to the filing of this brief, and their

letters of consent are on file with the Clerk. Counsel for amici curiae

certify that this brief was not written, in whole or in part, by counsel for

a party, and that no person or entity, other than amici curiae and

counsel, made a monetary contribution to the preparation or submis-

sion of the brief. Supreme Court Rule 37.6.

SUMMARY OF ARGUMENT

Amici ask the Court to reaffirm longstanding prece-

dent that in a pay discrimination case, each discrimina-

tory paycheck is a discrete actionable wrong, regardless of

when the discriminatory wage was set. This standard,

articulated expressly in Bazemore v. Friday, 478 U.S. 385

(1986), is in harmony with the plain language of Title VII,

has consistently been applied by lower courts, the Equal

Employment Opportunity Commission, and other federal

enforcement agencies, and makes practical sense. This

standard, as evidenced by two decades of consistent

application, is faithful to Title VII's careful balance be-

tween providing redress to victims of pay discrimination

and protecting employers from excessive back pay or stale

claims.

The Eleventh Circuit’s holding would make it impos-

sible for an employee to challenge current and ongoing

discrimination in pay. This interpretation is directly

contrary to Supreme Court precedent set out in Bazemore.

Bazemore has been applied consistently and visibly since

1986. In 1991, Congress passed the Civil Rights Act of

1991, which abrogated several Supreme Court interpreta-

tions of Title VII. Despite these significant changes,

Congress made no changes that would undermine

Bazemore, but rather endorsed that case’s interpretation

of Title VII.

Further, the Equal Employment Opportunity Com-

mission (“EEOC”), the federal agency charged with enforc-

ing Title VII, has issued and reaffirmed guidance that

every paycheck issued constitutes a discrete act by the

employer. Because the EEOC’s interpretation is reason-

able and consistent with statutory language, legislative

intent, and past decisions of this Court, it deserves defer-

ence. Finally, this rule is consistent with parallel interpre-

tations of the Equal Pay Act, the National Labor Relations

Act, and the Fair Labor Standards Act.

3

Title VII was passed to provide robust protection for

victims of discrimination. Congress balanced this interest

with protections for employers, for example, a two-year

limitation on any award of back pay. The Court, the

EEOC, and Congress have all recognized that the rule set

forth in Bazemore is the correct interpretation of that

balance, and the Court should continue to affirm that rule

today.

ARGUMENT

I. EACH PAYCHECK THAT COMPENSATES A

CHARGING PARTY LESS THAN SIMILARLY

SITUATED EMPLOYEES BECAUSE OF SEX

VIOLATES THE PLAIN LANGUAGE OF SEC-

TION 706(e) OF TITLE VII AND ESTAB-

LISHED PRECEDENT OF THIS COURT.

Two decades ago, in unequivocal language, this Court

ruled that “[e]ach week’s paycheck that delivers less to a

black than 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.”

Bazemore v. Friday, 478 U.S. 385, 395-96 (1986) (Brennan,

J., concurring).’ This holding honors the plain language of

Title VII, makes practical sense, and has been consistently

applied by the courts and federal enforcement agencies.

The ruling below contravenes Bazemore and the plain

language of Title VII. If upheld, the Eleventh Circuit's

ruling would render obsolete longstanding and consistently

applied precedent of this Court and virtually every lower

court in the country. It also ignores Congress’ ratification of

this Court’s longstanding interpretation of the provision of

Title VII that governs the timeliness of pay discrimination

* Bazemore was decided with a per curiam opinion, and Justice

Brennan’s concurrence was joined by all Members of the Court.

Bazemore, 478 U.S. at 388.

4

charges. Finally, the ruling below is inconsistent with the

EEOC’s interpretation of Title VII, to which deference is

ordinarily accorded.

A. Title VII Authorizes Petitioner to Challenge

Disparities in Each Paycheck Received

During the Time Period Covered by Her

Charge.

The “most salient source for guidance” in interpreting

§ 706(e) of Title VII “is the statutory text.” Nat? R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). In

establishing the time limit for filing charges, Title VII

states:

A charge under this section shall be filed within

one hundred and eighty days after the alleged

unlawful employment practice occurred .. .

42 U.S.C. § 2000e-5(e)(1). Morgan addressed the “critical

questions” of: (a) “[wJhat constitutes an ‘unlawful employ-

ment practice’” and, (b) when that practice “occurs.”

Morgan, 536 U.S. at 110. Without elaboration, the Court

held that a practice has “occurred” on the day that it

“happened.” Jd. Addressing the very issue now before this

Court, Morgan explained that “unlawful employment

practice” referred to discrete incidents and, invoking

Bazemore, reiterated that each paycheck is a “discrete”

incident in a pay discrimination claim. Jd. at 111-12,

quoting Bazemore, 478 U.S. at 395-96. Further, the Mor-

gan Court ruled that “[t]he existence of past acts and the

employee’s prior knowledge of their occurrence ... does

not bar employees from filing charges about related

discrete acts ... .” Jd. at 113. Therefore, starting with a

purely textual analysis, Morgan reached the same conclu-

sion as Bazemore had 20 years before, and embraced the

same analysis that Bazemore had adopted. Finally, Mor-

gan held that the issuance of discriminatory paychecks

prior to the limitations period does not bar a recipient of

5

subsequent, related paychecks from challenging them as

discriminatory during the limitations period.* Id.

The facts of this case closely parallel those of

Bazemore, and the arguments squarely rejected by the

Court in Bazemore closely parallel the rationale employed

by the Eleventh Circuit below. In Bazemore, a pay dispar-

ity arose prior to the enactment of Title VII. Id. at 393 n.4,

394-95. Even prior to 1972, when Title VII was first

applicable to state employers, the employer began reduc-

ing the disparities in pay between African American and

Caucasian employees. However, as of 1972 and continuing

thereafter, African American employees were still, on

average, paid less than similarly situated Caucasian

employees. Id. at 394-95. The disparities in pay before

1972 did not constitute a violation of Title VII. Jd. at 394.

Similarly, the pay disparity here began prior to the limita-

tions period applicable to Petitioner's Title VII charge and

continued thereafter. Ledbetter v. Goodyear Tire & Rubber

Co., 421 F.3d 1169, 1180-81 (11th Cir. 2005). Such dispari-

ties in pay, which are “not made the basis for a timely

charge” are “the legal equivalent of a discriminatory act

which occurred before the statute was passed.” United

Airlines v. Evans, 431 U.S. 553, 558 (1977). Thus, the pay

disparities that Petitioner experienced at Goodyear prior

to 1997 are the legal equivalent of the pay disparities that

the Bazemore plaintiffs experienced prior to 1972. Id.

* The issue before the Eleventh Circuit is more properly character-

ized as a question of the period within which damages may be recovered

rather than the period within which a charge may be filed. Under

Bazemore, and the language-of Title VII, Petitioner’s claim was timely

filed, and the real issue presented is whether her recovery is limited to

the unequal pay received during the 180 day period within which

charges may be filed, specified by 42 U.S.C. § 2000e-5(e)(1), the two

year period within which back pay may be recovered, pursuant to 42

U.S.C. § 2000e-5(g)(1), or is governed by some other time period. But

these are not the issues currently before the Court.

6

The Fourth Circuit in Bazemore ruled that the pay

differences, which were indisputably created prior to 1965,

could not be challenged in 1972, because the decision to

pay African American employees less than Caucasians had

been made when Title VII did not apply to that employer.

Accordingly, the Fourth Circuit held that the African

American employees could not challenge the entire salary

disparity, but could only challenge the pay-raise decisions

made during the time that Title VII applied to them.

Finally, the Fourth Circuit held that the pay-raise deci-

sions made after 1972 were not discriminatory. Id. at 394-

95.

Similarly, the Eleventh Circuit ruled here that only

the decisions that originated the pay disparity could be

challenged, and, as they occurred before the limitations

period applicable to the Petitioner’s charge, they were

beyond challenge. Accordingly, the Eleventh Circuit

reasoned, any challenge to pay disparities occurring

within the limitations period was untimely as the dispari-

ties originated with decisions made prior to the limitations

period. Ledbetter, 421 F.3d at 1179-81. Employing an

analysis strikingly similar to the reasoning applied by the

Fourth Circuit in-Bazemore, the Eleventh Circuit ruled

that Petitioner could not challenge “every dollar of differ-

ence between her salary and her male co-worker’s sala-

ries.” Jd. at 1181. Instead, the Petitioner was limited to

challenging pay-raise decisions made during or immedi-

ately before the limitations period. Jd. at 1180, 1182-83.

Having limited the scope of the Petitioner’s claim, the

Eleventh Circuit held there was insufficient evidence of

pay discrimination within the limitations period to sup-

port the verdict for Petitioner. Jd. at 1186-87.

The Court’s decision in Bazemore rejected each of the

Fourth Circuit’s rulings and the same analysis compels

reversal of the Eleventh Circuit here. As this Court ex-

plained in Bazemore:

7

The error of the Court of Appeals with respect to

salary disparities created prior to 1972 and per-

petuated thereafter is too obvious to warrant ex-

tended discussion: that the Extension Service

discriminated with respect to salaries prior to

the time it was covered by Title VII does not ex-

cuse perpetuating that discrimination after the

Extension Service became covered by Title VII.

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.

Bazemore, 478 U.S. at 395-96. The Court ruled that the

employer “was under an obligation to eradicate salary

disparities based on race that began prior to the effective

date of Title VII,” and thus it was error to consider only

the pay-raise decisions made after the effective date of

Title VII in assessing liability, instead of the total dispar-

ity in salary. Id. at 397. :

The Eleventh Circuit’s myopic focus on pay-raise

activity during the time period covered by Petitioner's

charge cannot be reconciled with Bazemore’s decision that

it is error to limit the ambit of a pay claim to pay raises

within the limitations period, rather than reviewing the

entire salary disparity, in assessing liability. Compare

Ledbetter, 421 F.3d at 1180-81, 1186-87 with Bazemore at

395-97. Fundamentally inconsistent with the holding in

Bazemore, the decision below should be reversed.

The Eleventh Circuit mistakenly regards the pay

disparity that originated before the limitations period as

immune from challenge when the disparity continues into

the limitations period simply because the initial decision

creating the disparity occurred outside the range of liabil-

ity. Indeed, the Eleventh Circuit faulted the district court

for permitting Petitioner to challenge “every dollar of

difference between her salary and her male co-workers’

8

salaries.” Ledbetter, 421 F.3d at 1181. Notwithstanding

that the pay disparities, which originated before the

limitations period, continued into the limitations period

with the issuance of each paycheck, the Eleventh Circuit

limited the assessment of liability and measure of losses to

the pay raises that occurred within the limitations period.

This decision conflicts with Morgan’s holding that a failure

to file a charge challenging earlier discriminatory actions

is no bar to filing a charge challenging timely, related

actions. Morgan, 536 U.S. at 113. Title VII makes it

unlawful for Respondent “to discriminate against any |

individual with respect to his compensation,” not merely

with respect to “changes in compensation.” § 703(a)(1), 42

U.S.C. § 2000e-2(a)(1). Therefore, each paycheck Peti-

tioner received should be examined in its entirety — not

merely that portion of the paycheck that was changed by

the employer during the limitations period.

* Notwithstanding the Respondent’s reference to Lorance v. AT&T,

490 U.S. 900 (1989) in its opposition to the petition for certiorari,

Lorance does not alter the calculus prescribed by Bazemore and

Morgan. Lorance addresses a different issue than Bazemore and one not

before the Court here. In Lorance, the plaintiffs alleged that a bona fide

seniority system was conceived with a discriminatory purpose, but did

“not allege that the seniority system treats similarly situated employ-

ees differently.” Lorance, 490 U.S. at 905. As such, the only act suscep-

tible to challenge as intentionally discriminatory was the conception of

the seniority system. Here, however, Petitioner alleges that Goodyear

has treated her differently from similarly situated men each time it

issues her paycheck. Had the seniority system been facially discrimi-

natory, that is, had it treated “similarly situated employees differently”

Lorance would have permitted its challenge at any time. Jd. at 912.

Therefore, Lorance would treat Petitioner's claim as timely, because she

is challenging a system in which she is regularly treated differently

than similarly situated men. The courts of appeal have interpreted

Lorance in the same manner. See Anderson v. Zubieta, 180 F.3d 329,

336 (D.C. Cir. 1999); Cardenas v. Massey, 269 F.3d 251, 257 (3d Cir.

2001).

9

B. The Courts of Appeal Have Uniformly Held

That Each Paycheck Is a New Violation of

Title VII and Congress Ratified This Rule

in the Civil Rights Act of 1991.

Until the Eleventh Circuit’s decision below, every

circuit court interpreted Bazemore to bar disparities in pay

within the applicable limitations period, regardless of

when the disparity originated. Moreover, this ruling has

been consistently held to apply to cases involving individ-

ual claims, rather than pattern-or-practice cases, and to

cases in which pay disparities arose prior to the statute of

limitations, rather than prior to the application of Title

VII. See, e.g., Cardenas v. Massey, 269 F.3d 251, 257-58 (3d

Cir. 2001) (applying Bazemore in individual case where

pay disparity arose prior to statute of limitations); Brink-

ley-Obu v. Hughes Training, Inc., 36 F.3d 336, 345-48 (4th

Cir. 1994) (same); Wagner v. NutraSweet Co., 95 F.3d 527,

534 (7th Cir. 1996) (applying Bazemore in case where pay

disparity arose prior to when a release of claims was

executed, but continued thereafter); Ashley v. Boyle's

Famous Corned Beef Co., 66 F.3d 164, 168 (8th Cir. 1995)

(en banc) (applying Bazemore in individual case where pay

disparity arose prior to statute of limitations); Goodwin v.

Gen. Motors Corp., 275 F.3d 1005, 1009-10 (10th Cir. 2002)

(same); Calloway v. Partners Natl Health Plans, 986 F.2d

446, 448-49 (11th Cir. 1993) (same); Anderson v. Zubieta,

180 F.3d 329, 335-36 (D.C. Cir. 1999).

Bazemore’s ruling, that each paycheck may give rise to

a new act of discrimination, was also ratified by Congress.

Five years after Bazemore was decided and cited repeat-

edly by the lower courts, Congress passed the Civil Rights

Act of 1991. Pub. L. No. 102-166, 105 Stat. 1071 (1991).

This act, inter alia, amended Title VII to abrogate several

rulings of the Court that Congress concluded had misin-

terpreted various provisions of Title VII. Landgraf v. USI

Film Prods., 511 U.S. 244, 250-51 (1994), citing Pub. L.

No. 102-166, § 3(4), 105 Stat. 1071. Although the legisla-

tion made numerous changes to Title VII, including

10

changes to when seniority systems could be timely chal-

lenged, see 42 U.S.C. § 2000e-5(e)(2), Congress declined to

disturb or modify the holding in Bazemore. Pub. L. No.

102-166, 105 Stat. 1071. Indeed, legislative history dem-

onstrates that in predecessor bills to the Civil Rights Act

of 1991, Congress expressly endorsed the holding in

Bazemore. S. Rep. No. 101-315, text at nn.44-45, 1990 WL

259315 (1990) (referencing “the result correctly reached in

Bazemore”); 136 Cong. Rec. S15376-01, S15381 (1990)

(confirming that a new provision would not affect the

precedent set in Bazemore); H.R. Rep. No. 101-644(ID), at

n.41 (1990); H.R. Rep. No. 102-40(I), at 62 & n.58 (1991),

as reprinted in 1991 U.S.C.C.A.N. 549; H.R. Rep. No. 102-

40(II), at 23, 24 & n.39 (1991), as reprinted in 1991

U.S.C.C.A.N. 549.

Where Congress has been aware of the Court’s inter-

pretation of a statute, has had the opportunity to amend

the statute to achieve a different result, and has chosen

not to do so, this Court has concluded that Congress has

endorsed the interpretation, and it should be respected as

the view of the legislature. As the Court held in Faragher:

We are bound to honor Meritor [Savings Bank,

FSB v. Vinson, 477 U.S. 57 (1986)] on this point

not merely because of the high value placed on

stare decisis in statutory interpretation, supra, at

2286, but for a further reason as well. With the

amendments enacted by the Civil Rights Act of

1991, Congress both expanded the monetary re-

lief available under Title VII to include compen-

satory and punitive damages, see § 102, 105 Stat.

1072, 42 U.S.C. § 1981a, and modified the statu-

tory grounds of several of our decisions, see § 101

et seq. The decision of Congress to leave Meritor

intact is conspicuous. We thus have to assume

that in expanding employers’ potential liability

under Title VII, Congress relied on our state-

ments in Meritor about the limits of employer li-

ability. To disregard those statements now (even

if we were convinced of reasons for doing so)

11

would be not only to disregard stare decisis in

statutory interpretation, but to substitute our

revised judgment about the proper allocation of

the costs of harassment for Congress’s considered

decision on the subject.

Faragher v. Boca Raton, 524 U.S. 775, 804 n.4 (1998);

Edelman v. Lynchburg Coll., 535 U.S. 106, 118 (2002) (“By

amending the law without repudiating the regulation,

Congress ‘suggests its consent to the Commission's prac-

tice.’”) (quoting EEOC v. Associated Dry Goods Corp., 449

U.S. 590, 600 n.17 (1981)). In light of the other changes

made by Congress in enacting the Civil Rights Act of 1991,

“the decision to leave” the holding of Bazemore “intact is

conspicuous,” and the Court should not alter its interpre-

tation here. Faragher, 524 U.S. at 804 n.4.

Moreover, the circuit courts, other than the Eleventh

Circuit below, have consisiently held that Morgan pre-

served the holding in Bazemore: that disparities in pay

received within the limitations period may be challenged

in their entirety, regardless of when they originated. See,

e.g., Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 134

(2d Cir. 2003); Forsyth v. Fed’n Employment & Guidance

Serv., 409 F.3d 565, 572-73 (2d Cir. 2005); Williams v.

Giant Food, Inc., 370 F.3d 423, 429 (4th Cir. 2004); Reese v.

Ice Cream Specialties, Inc., 347 F.3d 1007, 1009 (7th Cir.

2003); Hildebrandt v. Ill. Dep't of Natural Res., 347 F.3d

1014, 1027 (7th Cir. 2003); Tademe v. Saint Cloud State

Univ., 328 F.3d 982, 989 (8th Cir. 2003); Lyons v. Eng., 307

F.3d 1092, 1107 n.7 (9th Cir. 2002); Davidson v. Am.

Online, Inc., 337 F.3d 1179, 1186 (10th Cir. 2003); Shea v.

Rice, 409 F.3d 448 (D.C. Cir. 2005).

12

C. The EEOC’s Interpretation of § 706 - That

Each Paycheck Constitutes a Discrete Act -

is Fully Consistent With the Language of

Title VII, Is Reasonable and Consistent

With Legislative Intent, and Warrants This

Court’s Deference.

EEOC guidance constitutes a body of experience and

informed judgment to which courts and litigants may

properly resort for direction. See, e.g., Burlington N. &

Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2413-14 (2006);

Smith v. City of Jackson, 544 U.S. 228, 235 (2005); Gen.

Elec. Co. v. Gilbert, 429 U.S. 125, 141-42 (1976); Griggs v.

Duke Power Co., 401 U.S. 424, 433-34 (1971). Courts rely

on the EEOC’s interpretations to inform their understand-

ing of Title VII and other employment discrimination laws.

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986).

Indeed, in the Court’s most recent decision in a Title VII

case, the Court relied in part on sub-regulatory guidance

issued by the EEOC. See Burlington N., 126 S. Ct. at 2413-

14 (citing with approval the EEOC’s interpretation of Title

VII's anti-retaliation provision, as stated in the EEOC

Compliance Manual). Consistent with long-standing

judicial interpretation, the EEOC has promulgated well-

reasoned guidance that each paycheck constitutes a

discrete act susceptible to challenge under Title VII. This

interpretation should be adopted because it has the “power

to persuade” as described in Skidmore, when one considers

“the thoroughness evident in its consideration, the validity

of its reasoning, its consistency with earlier and later

pronouncements, and all thfe other] factors which give it

power to persuade.” Skidmore v. Swift & Co., 323 U.S. 134,

140 (1944); Gonzales v. Oregon, 126 S. Ct. 904, 922 (2006).

Relying upon close examination of Bazemore and Morgan,

as well as the plain language and purpose of Title VII's

prohibition of discrimination in pay, the EEOC’s well-

reasoned interpretation is entitled to deference.

13

As new authority is issued by the courts, the EEOC’s

policy guidance on Bazemore has been reissued, demon-

strating that it has accounted for the latest jurisprudence

on the subject. Before the Morgan decision, EEOC guid-

ance referred to Bazemore’s holding that each paycheck

constitutes “a wrong actionable under Title VII.” EEOC

Compliance Manual, “Threshold Issues: Timeliness” § 2-

IVC at n.183 (issued July 27, 2000) (citations omitted).

After Morgan, the EEOC promulgated new guidance

which concluded that the principles enunciated in

Bazemore still apply and, therefore, each paycheck may

constitute a discrete act of discrimination. In 2005, the

EEOC issued an update to its Compliance Manual to

“conform[] the ... discussion of the continuing violation

doctrine to the Supreme Court’s decision in ... Morgan.”

See EEOC Compliance Manual Discussion, New Manual:

Section 2: Threshold Issues (May 12, 2000) available at

http://www.eeoc.gov/policy/compliance.html. The revised

language provides:

In National Railroad Passenger Corp. v. Morgan,

the Supreme Court ruled that the timeliness of a

charge depends upon whether it involves a dis-

crete act or a hostile work environment claim. .. .

A discrete act, such as failure to hire or promote,

termination, or denial of transfer, is independ-

ently actionable if it is the subject of a timely

charge. Such acts must be challenged within

180/300 days of the date that the charging party

received unequivocal written or oral notification

of the action, regardless of the action’s effective

date.... Repeated occurrences of the same dis-

criminatory employment action, such as dis-

criminatory paychecks, can be challenged as long

as one discriminatory act occurred within the

charge filing period. See Bazemore v. Friday, 478

U.S. 385, 395-96 (Brennan, J., concurring).

14

EEOC Compliance Manual, “Threshold Issues: Timeli-

ness” § 2-IV.C (issued July 21, 2005) (citations and foot-

notes omitted) (emphasis added).

Consistent with this interpretive guidance, the EEOC

filed an amicus brief with the Eleventh Circuit below.

There, the EEOC argued that the principles enunciated in

Bazemore still apply after Morgan:

What Bazemore teaches is that Ledbetter need

not prove that Goodyear made a conscious deci-

sion to discriminate against her on the basis of

her sex during — or just before — the limitations

period. The decision to discriminate may have

been made years ago — even, as in Bazemore, be-

fore such discrimination became unlawful... . If

it were the case that a Goodyear manager made

an openly discriminatory salary-setting decision

back in 1979 (when Ledbetter was hired), and

that all the company’s decisions affecting her sal-

ary since then were non-discriminatory, Ledbetter

could and should have challenged that 1979 deci-

sion by filing a timely charge. But her failure to

do so does not deprive her of the right to seek re-

lief for discriminatory paychecks she received in

1997 and 1998.

EEOC Br. in Support of Pet. for Reh’g and Suggestion for

Reh’g En Banc (Oct. 26, 2005) at 12 & 14.

The EEOC also has consistently applied these princi-

ples in deciding pay-discrimination cases brought by

federal employees. One recent decision explained that the

Commission’s interpretation is entirely consistent with

Morgan:

In Morgan, the Supreme Court expressly relied

on its statement in [Bazemore], regarding each

paycheck paid at a discriminatory rate as an ex-

ample of an actionable “discrete act or single oc-

currence, even when it has a connection to other

acts.” The Court did not characterize Bazemore

15

as involving a “continuing violation” or as em-

bracing a continuing violation doctrine. Instead,

the Court reaffirmed the Bazemore statement

that each discriminatory paycheck was a sepa-

rate discriminatory act. Therefore, reading

Bazemore in light of Morgan, as long as one inci-

dent of alleged disparate pay occurred within the

time limits for bringing the claim, the complaint

should be accepted for investigation.

Amft v. Mineta, Appeal No. 07A40116, 2006 EEOPUB

LEXIS 1472, at *13-14 (E.E.0.C. Dec. Apr. 6, 2006) (cita-

tions omitted).

In another post-Morgan decision, the EEOC accepted

an Equal Pay Act complaint for investigation because at

least “one incident of alleged disparate pay occurred

within the time limits for bringing the claim.” McCrae v.

Gutierrez, Appeal No. 01A53762, 2005 EEOPUB LEXIS

4298 (E.E.0.C. Dec. Sept. 9, 2005). The EEOC explained:

[I]t [is] well settled that repeated occurrences of

an alleged discriminatory act such as the issu-

ance of a paycheck, is a wrong that is action-

able. ... This means that as long as one incident

of alleged disparate pay occurred within the time

limits for bringing the claim, the complaint

should be accepted for investigation.

Id. at *2 (citations omitted). As demonstrated by these

administrative decisions, the EEOC has consistently

applied its well-reasoned interpretation of Bazemore and

Morgan.

As an “administrative interpretation of [Title VII] by

the enforcing agency,” Griggs, 401 U.S. at 433-34, EEOC

guidance “constitute[s] a body of experience and informed

judgment to which courts and litigants may properly

resort for guidance.” Gen. Elec., 429 U.S. at 141-42, quot-

ing Skidmore, 323 U.S. at 140; see also Burlington N., 126

S. Ct. at 2413-14 (deferring to the EEOC’s interpretation

of Title VII's anti-retaliation provision); Smith, 544 U.S. at

'235 (citing EEOC guidance to support the conclusion that

16

a disparate-impact theory is cognizeble under the Age

Discrimination in Employment Act). After Morgan, the

EEOC concluded that the principles enunciated in

Bazemore still apply, and that “[rjepeated occurrences of

the same discriminatory employment action, such as

discriminatory paychecks, can be challenged as long as one

discriminatory act occurred within the charge filing

period.” EEOC Compliance Manual, § 2-IV.C.1.a (issued

July 21, 2005) (footnotes omitted). As the federal agency

charged with interpreting and enforcing Title VII, its

consistent view that each paycheck may constitute a new

act of discrimination should be accorded deference.

D. The Issuance of Each Paycheck that Com-

pensates Similarly-Situated Men and Women

Differently May Reflect an Intent to Dis-

criminate.

The Eleventh Circuit is mistaken in ruling that only

the decisions originally creating the disparity in pay may

qualify as actionable discrimination and that issuance of

each successive paycheck in which those disparities persist

fails to qualify as conduct that violates Title VII. The court

below required evidence of an “affirmative decision” to set

pay levels in order to constitute actionable conduct and

dismissed as legally inconsequential the actions of Good-

year to perpetuate the pay disparity with each new pay-

check it issued. Ledbetter, 421 F.3d at 1177, 1180, 1183,

1184 (referring to an “affirmative decision” on five sepa-

rate occasions). Moreover, the Eleventh Circuit appears to

confuse the Title VII requirement that evidence of intent

to discriminate be shown with an expectation that “ill will”

be demonstrated. In doing so, the court failed to appreciate

the ways in which intent to discriminate was manifested

in Petitioner’s case below. Jd. at 1186 (“There was no

evidence that he bore any ill will towards Ledbetter or

toward women generally.”). These are fundamental errors

in application of Title VII. Because the Eleventh Circuit

was looking for an “affirmative decision” which reflected

17

“ill will” during the limitations period, the court over-

looked the myriad ways in which intentional discrimina-

tion can be shown to have existed at Goodyear during the

time period encompassed by Petitioner’s charge.

An “affirmative decision” is not a required element of

proof to establish liability under Title VII. A plaintiff

establishes a prima facie case of discrimination in com-

pensation by demonstrating she is a member of a pro-

tected class, performs work substantially equal to that of

persons outside that protected class, and is compensated

less than those similarly situated. Coward v. ADT Sec.

Sys., Inc., 140 F.3d 271, 273 (D.C. Cir. 1998); Aman v. Cort

Furniture Rental Corp., 85 F.3d 10/4, 1087 (3d Cir. 1996);

Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518,

1529 (11th Cir. 1992) (prima facie case consists of showing

membership in protected class and that plaintiff’s job is

similar to higher paying jobs occupied by non-class mem-

bers). A plaintiff must show she is treated less favorably

than others similarly-situated, but not that the difference

in pay is the result of an “affirmative decision.” Goodwin,

275 F.3d at 1012. Bazemore recognized, for example, that

an employer has an affirmative “obligation to eradicate”

salary disparities due to past discriminatory decisions,

even if those earlier discriminatory decisions were lawful

at the time they were made. Bazemore, 478 U.S. at 397.

The perpetuation of those pay disparities into a period

when they are prohibited creates liability under Title VII.

Id. Whether this conduct qualifies as an “affirmative

decision” or not, nothing more is required to violate Title

VIL.’ Thus, the Eleventh Circuit erred by requiring evi-

dence of an “affirmative decision” within the limitations

period beyond the decision to issue a paycheck.

* The EEOC likewise has interpreted Title VII to require an

employer to eliminate pay disparities where they can be attributed to a

prohibited ground, regardless of when the disparity first occurred.

EEOC Compliance Manual § 10-III (2006).

18

Nor is the Eleventh Circuit correct in requiring

evidence of ill will to demonstrate intentional discrimina-

tion. This Court has defined intentional discrimination:

“To discriminate is to make a distinction, to make a

difference in treatment or favor.” Price Waterhouse v.

Hopkins, 490 U.S. 228, 244 (1989) (quoting 110 Cong. Rec.

7213 (1964)). This Court has explicitly rejected the argu-

ment, which the Eleventh Circuit embraced below, that a

showing of animus against women is required to show an

intentional difference in treatment. Int’) Union, United

Auto., Aerospace & Agric. Implement Workers of Am., UAW

v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991); see also

EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1283-84

(11th Cir. 2000).

The record below reveals that Goodyear manifested an

intention to pay Petitioner less than similarly-situated

men, which violated Title VII. With the issuance of each

paycheck, Goodyear had the opportunity and the obliga-

tion to “eradicate” the disparity in pay between Ms.

Ledbetter and similarly situated men. Bazemore, 478 U.S.

at 397. Goodyear could have eliminated the pay disparity

during its annual pay-raise reviews, but it chose not to do

so. Goodyear’s repeated failure to eliminate disparities in

pay that it perpetuated with each paycheck creates an

inference of intentional discrimination within the applica-

ble limitations period. The Eleventh Circuit erred by

concluding otherwise.

The Eleventh Circuit mistakenly regarded Goodyear’s

compensation system as operating automatically, leaving

no discretion to adjust pay levels or eliminate the pre-

existing pay disparities. Ledbetter, 421 F.3d at 1172-73,

1182. Issuance of paychecks to each employee, of course,

can be terminated when employees are discharged. Simi-

larly, errors in paychecks can be corrected. Nothing pre-

cluded Goodyear from eliminating the gender-based pay

disparities, and the issuance of each paycheck afforded it

regular opportunities to do so. A compensation system that

can be adjusted to stop payment to discharged employees

19

or correct errors in withholding or other administrative

actions is equally available to eliminate unlawful pay dis-

parities. Goodyear simply declined to do so and that failure

constitutes intentional discrimination. Even the frequency

with which an employer reviews the compensation levels of

its workforce is a matter of choice. Vigilant employers that

seek to ensure against illegitimate disparities in pay can,

and often do, regularly examine the pay levels of their

workers and, where disparities are observed that may

suggest impermissible factors, investigate those anomalies

to determine whether they should be adjusted. Employers

also have the choice whether to reexamine total compensa-

tion levels or just whether a pay adjustment is warranted.

The choice to circumscribe compensation review to the

more limited inquiry of whether a pay raise is warranted

cannot relieve an employer of its responsibility to ensure

that its total compensation is equitable.° EEOC Compli-

ance Manual §§ 10-III and 10-III(A)(1)(c)(2) (discrimina-

tion may be found where “[aJn employer pays employees

inside a protected class less than similarly situated

employees outside the protected class” and the employer's

explanation does not account for “the entire compensa-

tion disparity.”). In either event, Title VII makes employ-

ers responsible for ensuring the total compensation paid

does not differ due to gender, race or other prohibited

grounds.’

* Indeed, if an employer considers only whether a pay raise is

warranted, it ratifies the prior base salary, and adopts any discrimina-

tory intent that motivated the earlier decision.

’ The situation is unlike United Airlines v. Evans, 431 U.S. 553

(1977) in which the employer had a facially neutral seniority system in

which no employee who was rehired was given any seniority credit for

prior service, and thus both male and female employees were treated

alike. At Goodyear, men who were paid the same salary as Petitioner in

1979 were paid a substantially higher salary than she was in 1998,

even though both were doing the same job. Thus, in Evans the plaintiff

complained that she was treated differently than men in the past, and ~

that therefore it was unfair for her to be treated the same as men who

(Continued on following page)

20

As the entity with the best access to, and often the

only access to, information about the compensation paid to

trusted by Title VII with the responsibility for ensuring

against unlawful disparities in pay. The failure to correct

known disparities that are attributable to prohibited

grounds supports an inference of intentional discrimina-

tion.” “When the adverse consequences of a law upon an

identifiable group are as inevitable as the gender-based

consequences [here], a strong inference that the adverse

effects were desired can reasonably be drawn.” Personnel

Admin’r of Mass. v. Feeney, 442 U.S. 256, 279 n.25 (1979).

Nor is a company’s prior conduct irrelevant in assess-

ing whether its present pay practices evidence an intent to

discriminate. The Court has held:

Proof that an employer engaged in racial dis-

crimination prior to the effective date of Title VII

might in some circumstances support the infer-

ence that-such discrimination continued, particu-

larly where relevant aspects of the decision-

making process had undergone little change. |

were terminated for lawful reasons in the past. However, in the case at

bar, Petitioner complains that she was treated the same as her male

peer in the past (1979), but that her current treatment, specifically the

disparity in pay, is unlawful. The wrong of which Evans complained

was in the past, but the wrong of which Petitioner complains is in the

present.

* In general, actions which have “foreseeable and anticipated”

consequences can be found to have been taken with the “forbidden

purpose” of achieving those consequences. “Adherence to a particular

policy or practice, ‘with full knowledge of the predictable effects of such

adherence upon racial imbalance in a school system is one factor among

many others which may be considered by a court in determining

whether an inference of segregative intent should be drawn.’” Colum-

bus Bd. of Educ. v. Penick, 443 U.S. 449, 464-65 (1979).

21

Bazemore, 478 U.S. at 402, quoting Hazelwood Sch. Dist.

v.- United States, 433 U.S. 299, 309-10 (1977). Prior dis-

criminatory conduct committed by Goodyear, even if not

actionable, was certainly relevant in assessing the lawful-

ness of its conduct committed within the limitations

period. See Evans, 431 U.S. at 558; see also Morgan, 536

U.S. at 113. Thus, the issuance of disparate paychecks to

similarly situated individuals constitutes actionable

discrimination. For all of these reasons, the Eleventh

Circuit’s decision must be reversed.

Il. TITLE Vil WAS ENACTED AND AMENDED

AGAINST A BACKDROP OF STATUTORY INTER-

PRETATION ALLOWING PLAINTIFFS TO RE-

COVER FOR RECURRING VIOLATIONS OF PAST

WRONGS.

Congress enacted and amended Title VII, and this

Court should interpret Title VII, against a backdrop of

other statutes that consistently have been interpreted to

allow plaintiffs to recover for recurring violations of

statutes, even when the initial violation occurred outside

the limitations period.’ Both before and after Morgan, for

example, courts have held that each discriminatory

* In some of the cases cited herein, courts permitting recovery for

recurring violations within the limitations period, where a violation had

begun outside of the limitations period, referred to this as a “continuing

violation.” However, examination of the analysis in these cases reveals

that the courts were not endorsing the sort of “continuing violation”

that Morgan found inapplicable to discrete violations of Title VII, in

which a plaintiff is permitted to recover for an entire series of viola-

tions, even those violations that pre-date the statute of limitations, but

instead were following the rule adopted in Bazemore that fresh

violations within the limitations period were actionable. Morgan, 536

U.S. at 110-12; Bazemore, 478 U.S. at 395-96. Commentators have

recognized that courts often use the phrase “continuing violation” to

describe both of these distinct concepts. See Douglas Laycock, Continu-

ing Violations, Disparate Impact in Compensation, and Other Title VII

Issues, 49 Law & Contemporary Problems 53, 55-57 (1986).

22

paycheck that falls under the Equal Pay Act of 1963

(“EPA”) constitutes a discrete actionable harm. Similarly,

Congress modeled Title VII’s limitations provisions after

the National Labor Relations Act (““NLRA”), which — as

courts have consistently held — allows plaintiffs to sue on

recurring instances of an illegal act, even if the initial

illegal act occurred outside the limitations period. See, e.g.,

Atlas Air, Inc. v. Air Line Pilots Ass’n, 232 F.3d 218, 226

(D.C. Cir. 2000) (holding that “maintaining and continuing

to maintain” an exclusionary profit-sharing plan during

the limitations period constituted an actionable violation,

despite the fact that the profit-sharing plan originated

outside the limitations period); Brenner v. Local 514,

United Bhd. of Carpenters and Joiners of Am., 927 F.2d

1283, 1296 (3d Cir. 1991). Likewise, each paycheck that

fails to compensate an employee for overtime hours

worked in violation of the Fair Labor Standards Act

(“FLSA”) constitutes a distinct statutory violation that

starts the statute of limitations period anew. See, e.g.,

Knight v. Columbus, Ga., 19 F.3d 579, 581-82 (11th Cir.

1994) (collecting FLSA cases); Hodgson v. Behrens Drug

Co., 475 F.2d 1041, 1050 (5th Cir. 1973) (applying equal

pay provisions of the FLSA).”

There is no reason to believe that Congress, legislat-

ing against this statutory backdrop, intended to abandon

this limitations framework when passing Title VII. See,

supra, Section I.B. Moreover, as a matter of policy, courts,

including this Court, should attempt to interpret statutes

consistently and harmoniously. “Harmony and consistency

are positive values in our legal system, because they serve

the interests of impartiality and minimize arbitrariness.

Construing statutes by reference to others advances those

” The accrual of Title VII pay discrimination claims at the time of

payment is consistent not only with other employment and civil rights

statutes, but also with other long-standing statutory schemes such as

the Sherman Act. See, e.g., Klehr v. A.O. Smith Corp., 521 U.S. 179, 189

(1997) (collecting antitrust authorities).

23

values. In fact, courts have been said to be under a duty to

construe statutes harmoniously where that can reasonably

be done.” 2B Sutherland Statutory Construction § 53:1

(6th ed. 2005). Just as is the case in the statutory schemes

described below, a claimant’s prior notice of an ongoing

Title VII violation does not deprive that claimant of the

ability to recover for the violations that continue into the

charge-filing period.

A. Title VII Should Be Construed in Accor-

dance With Equal Pay Act Precedent

' Holding That Each Paycheck Constitutes

a Discrete Violation.

Like Title VII, the Equal Pay Act of 1963 (“EPA”)

prohibits wage discrimination.” Although the EPA and

Title VII differ in some respects, courts have consistently

held that Title VII and the EPA are in pari materia and thus

should be construed similarly.” See, e.g., Lavin-McEleney v.

" The EPA is violated when an employer “discriminate[s] .. .

between employees on the basis of sex by paying wages to employees

... at a rate less than the rate at which he pays wages to employees of

the opposite sex ... for equal work on jobs the performance of which

requires equal skill, effort, and responsibility, and which are performed

under similar working conditions.” 29 U.S.C. § 206(d)(1) (2006).

* Although this Court has not addressed the issue directly, in

County of Washington v. Gunther, 452 U.S. 161 (1981), it said the two

statutes should be construed in pari materia. In interpreting the

Bennett Amendment to Title VII, the Court held that, “[t]he Bennett

Amendment was offered as a ‘technical amendment’ designed to resolve

any potential conflicts between Title VII and the Equal Pay Act. Thus

... the Bennett Amendment has the effect of guaranteeing that courts

and administrative agencies adopt a consistent interpretation of like

provisions in both statutes. Otherwise, they might develop inconsistent

bodies of case law interpreting two sets of nearly identical language.”

Id. at 170. In his dissenting opinion, Justice Rehnquist agreed with the

fundamental conclusion that “there can be no doubt that the Equal Pay

Act and Title VII should be construed in pari materia” and that

“Congress intended to incorporate the substantive standards of the

Equa) Pay Act into Title VII.” Jd. at 189 & 190.

24

Marist Coll., 239 F.3d 476, 483 (2d Cir. 2001); Gunther v.

County of Wash., 623 F.2d 1303, 1309 (9th Cir. 1979),

aff’d, 452 U.S. 161 (1981); Di Salvo v. Chamber of Com-

merce of Greater Kan. City, 568 F.2d 593, 596 (8th Cir.

1978); Shultz v. Wheaton Glass Co., 421 F.2d 259, 266 (3d

Cir. 1970).

In deciding statute of limitations issues in EPA cases,

courts have looked to Bazemore and Morgan for guidance.

In EPA cases decided both before and after Morgan, courts

consistently have held that each paycheck issued under a

discriminatory wage policy is a discrete violation of the

EPA. Prior to Morgan, it was well settled among the

circuits that “each issuance of a paycheck to a female

employee at a lower wage than that issued to her male

counterpart constitutes a new discriminatory action for

purposes of Equal Pay Act limitations accrual.” Brinkley-

Obu, 36 F.3d at 347, citing Nealon v. Stone, 958 F.2d 584,

591 (4th Cir. 1992); see also Pollis v. The New Sch. for

Social Research, 132 F.3d 115, 119 (2d Cir. 1997); Ashley,

66 F.3d at 167-68; Gandy v. Sullivan County, Tenn., 24

F.3d 861, 864 (6th Cir. 1994) (“The Equal Pay Act is

violated each time an employer presents an ‘unequal’

paycheck to an employee for equal work.” (citations omit-

ted)); Erickson v. N.Y. Law Sch., 585 F.Supp. 209, 213

(S.D.N.Y. 1984) (“Under the [Equal Pay Act], a separate

claim accrues each time the aggrieved employee receives a

paycheck reflecting discriminatory wages.”).

Post-Morgan, lower courts have continued to hold that

each paycheck issued under a discriminatory wage policy

is a discrete violation of the EPA. See Byrne v. Telesector

Res. Group, Inc., No. 04-CV-76S, 2005 WL 464941, at *11

(W.D.N.Y. Feb. 25, 2005); Downes v. JP Morgan Chase &

Co., No. 03 Civ.8991(GEL), 2004 WL 1277991, at *7

(S.D.N.Y. June 8, 2004) (“A new claim accrues each time

an employee receives a paycheck under a discriminatory

wage policy.”); Calvello v. Elec. Data Sys., No. 00CV800,

2004 WL 941809, at *2 (W.D.N_.Y. Apr. 15, 2004), aff’d, 151

Fed. Appx. 35 (2d Cir. 2005) (citing both Morgan and

25

Bazemore to reach the conclusion that “[flor the Equal Pay

Act or wage discrimination aspects of plaintiff’s Title VII

claim, each paycheck constitutes an actionable discrete act

for which the statute of limitations runs.”).

Because Title VII and the EPA are in pari materia,

Title VII should also be construed to permit a claim of

compensation discrimination if the plaintiff received a

discriminatory paycheck within the statute of limitations,

even if the decision to pay her a lower wage originated

outside the statutory period.

B. Congress Modeled Title VII’s Limitation

Period on the NLRA’s Limitation Period,

Which Allows Plaintiffs to Recover for the

Recurring Application of Violations That

Began Prior to the Limitations Period.

Because Congress fashioned the remedial scheme in

Title VII, including its limitations period for filing an

administrative charge, after the NLRA, see Albemarle

Paper Co. v. Moody, 422 U.S. 405, 419 & 421 n.11 (1975),

Congress must have intended courts to apply the two

statutes’ limitations periods in a similar manner. Indeed,

Title VII's limitations period originates from and is sub-

stantially similar to the NLRA’s statute of limitations.

Compare 42 U.S.C. § 2000e-5 with 29 U.S.C. § 160(b).”

Accordingly, courts often rely on NLRA § 10(b) (29 U.S.C.

§ 160(b)) to help interpret § 706(e) of Title VII. Such

reliance is particularly appropriate since the unusual

requirement of an administrative charge is common to

the two statutes. Id.; see also Zipes v. TWA, 455 U.S. 385,

395 n.11 (1982) (finding that the time limitations of

" Section lu(b) of the NLRA provides, in relevant part, that “no

complaint shall issue based upon any unfair labor practice occurring

more than six months prior to the filing of [a] charge with the [National

Labor Relations) Board and the service of a copy thereof upon the

person against whom such charge is made.” 29 U.S.C. § 160(b).

26

§ 706(e) should be treated in the same manner as those

contained in the NLRA). Thus, when interpreting § 706(e),

“reference must be made to actual operation and experi-

ence in administering the [NLRA).” Franks v. Bowman

Transp. Co., 424 U.S. 747, 774-75 n.34 (1976); cf. Pollard v.

E.l. du Pont de Nemours & Co., 532 U.S. 843, 849 (2001)

(stating that the Courts’ construction of NLRA § 10(c)

before the enactment of Civil Rights Act of 1964 provides

“guidance as to the proper meaning of the same language

in § 706(g) of Title VII”). Subsequent amendments to Title

VII have not altered Title VII's reliance on the NLRA

model. In 1972, Congress expanded Title VII's limitations

period. See Mohasco Corp. v. Silver, 447 U.S. 807, 818-24

(1980). The House and Senate committee reports on the

1972 amendments labeled the structure of the new limita-

tions period as “similar to” or “identical to” the six-month

limitations period that applied under § 10(b) of the NLRA.

See S. Rep. No. 92-415 (1971); H.R. Rep. No. 92-238 (1971),

as reprinted in 1972 U.S.C.C.A.N. 2137, 2174-75 (Minority

Views).

Courts have long held that § 10(b) of the NLRA allows

plaintiffs to recover for the recurring application of viola-

tions decided upon and begun prior to the limitations

period. Under the NLRA, ‘a plaintiff may challenge a

recurring unfair labor practice that causes harm within

the six-month statutory period, even if a charge alleging

the same violation, or a similar and related violation,

could have been brought before the six-month period. See,

e.g., N.L.R.B. v. FH. McGraw & Co., 206 F.2d 635, 639

(6th Cir. 1953) (finding an actionable claim where “the

unfair labor practice alleged in the complaint was not the

execution of this contract, but its enforcement and imple-

mentation ... within the period of limitations”); Katz v.

N._L.R.B., 196 F.2d 411, 415 (9th Cir. 1952) (“continued and

continuous enforcement” of illega) union shop agreement

constituted a redressable violation); N.L.R.B. v. Carpenters

Local Union No. 1028, 232 F.2d 454, 456 (10th Cir. 1956)

(discriminatory enforcement of closed-shop agreement

27

during limitations period satisfies Section 10(b)); Melville

Confections, Inc., 142 N.L.R.B. 1334, 1335 & n.1, 1337-39

(1963) (finding that a profit-sharing plan adopted in 1957

“and made known to [the company’s] employees at all

times thereafter” warranted relief when charge was filed

in September 1962), enforced, 327 F.2d 689, 692 (7th Cir.

1964).

Given Congress’ reliance on the NLRA when passing

and amending Title VII, and given courts’ and the NLRB’s

established practice of permitting suit for recurring

violations within the limitations period despite the fact

that the original wrong-doing occurred outside the statu-

tory period, there is every reason to believe that Congress

intended the same principle to apply in the Title VII

context. Under the NLRA, where a party continues to

issue deficient paychecks that cause recurring harm

within the limitations period, each failure to pay the

required amount is actionable conduct that gives rise to a

new cause of action. See, e.g., Farmingdale Iron Works, 249

N.L.R.B. 98, 99 (1980) (“[E]ach failure to make the con-

tractually required monthly benefit fund payments consti-

tuted a separate and distinct violation of Respondents’

bargaining obligation and, therefore, that any benefit fund

payment due [within the limitations period] is subject to

the Board’s remedial powers.”); The Kroger Co., 334

N.L.R.B. 847 (2001) (ordering a union to refrain from

continually deducting union dues from the plaintiff’s

paycheck). The same should hold true in the Title VI

context.

C. The Treatment of Recurring Violations in

the Fair Labor Standards Act and Title

Vil Should Be Parallel.

Long before passage of Title VII, it was well settled

that, under the FLSA, “[a] separate cause of action for

overtime compensation ‘accrues’ at each regular payday

immediately following the work period during which the

28

services were rendered and for which the overtime com-

pensation is claimed.” Dunlop v. State of R.I., 398 F. Supp.

1269, 1286 (D.R.I. 1975) (citing Mitchell, Sec’y of Labor v.

Lancaster Milk Co., 185 F. Supp. 66, 70 (M.D. Pa. 1960)

(same quote) and Shandelman v. Schuman, 92 F. Supp.

334, 335 (E.D. Pa. 1950) (same quote)). Thus, the statute

of limitations under the FLSA begins anew with each

wrongfully calculated paycheck, with no reference to the

moment when the employer actually decided to classify an

employee as exempt from overtime pay requirements. Of

course, the classification decision, even if it was made

several years earlier, is nonetheless relevant to litigation

over the existence of a current violation of the FLSA,

because employers are immune from liability for their

wrongfully calculated paychecks if they can prove that the

classification decision was made in “good faith.” 29 U.S.C.

§ 260. Yet the FLSA allows claims for each paycheck

wrongly calculated, regardless of when the exemption

classification decision was made.

Thus, under the FLSA, each new paycheck is a viola-

tion. “Each failure to pay overtime constitutes a new

violation.” Knight, 19 F.3d at 581 (emphasis in original);

Q2A Fed. Proc., L. Ed. § 52:1714 (2006) (“A cause of action

accrues when an employer fails to pay required compensa-

tion.... A mew cause of action accrues each time an

employer fails to pay full compensation on the regular

payday.”); 29 C.F.R. § 790.21(b) (“The courts have held that

a cause of action under the Fair Labor Standards Act for

unpaid minimum wages or unpaid overtime compensation

and for liquidated damages ‘accrues’ when the employer

fails to pay the required compensation for any workweek

at the regular pay day for the period in which the work-

week ends.” (citing cases)); Ellen C. Kearns, The Fair

Labor Standards Act § 18.VI1.B.6 (1999), at 1210 (“It is well

established under the FLSA that an action seeking pay-

ment of the minimum wage or overtime compensation

accrues when the employer fails to pay the required

compensation then due.”). Congress enacted Title VII

29

against the backdrop of earlier decisions under the FLSA,

holding that each paycheck that failed to include overtime

compensation constituted a recurring statutory violation

which started anew the statute of limitations, and this

Court should interpret Title VII in the same way, and hold

that each paycheck which pays a woman less than a

similarly situated man constitutes a new Title VII viola-

tion for limitations purposes.

Preventing an employee from remedying a recurring

violation simply because the conduct is long-standing

serves no purpose. The employer is aware of the continued

consequences of its illegal acts, and employees continue to

suffer — with ever-growing heft — the expense of that

conduct. The law permits suit on recurring violations

carried out during the limitations period pursuant to

decisions to violate the law which pre-date the limitations

period because that wrongful intent is equally present in

each application of the earlier decision. A contrary rule

would permit the wrongdoer to benefit from its wrongful

act indefinitely merely because the first instance of the

repeated wrongdoing was not timely challenged.

30

CONCLUSION

For the foregoing reasons, the Court should reverse

the decision below.

JOHN BRITTAIN

MICHAEL FOREMAN

SARAH CRAWFORD

ADAM STOFSKY

LAWYERS’ COMMITTEE FOR

CIviL RIGHTS UNDER LAW

1401 New York Avenue, NW,

Suite 400

Washi , DC 20005

(202) 662-8600

TERISA E. CHAW

EXECUTIVE DIRECTOR

NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION

44 Montgomery Street

Suite 2080

San Francisco, CA 94104

(415) 296-7629

Respectfully submitted,

JOSEPH M. SELLERS

Counsel of Record

CHRISTINE E. WEBBER

COHEN, MILSTEIN, HAUSFELD

& TOLL, PLLC

1100 New York Avenue, NW,

Suite 500

Washington, DC 20005

(202) 408-4600

JAMES M. FINBERG

EVE H. CERVANTEZ

JAHAN C. SAGAFI

PETER LECKMAN

DANIEL HUTCHINSON

LIEFF CABRASER HEIMANN &

BERNSTEIN, LLP

275 Battery Street,

30th Floor

San Francisco, CA 94111

(415) 956-1000

[Additional Counsel Listed on Inside Cover]

App. 1

APPENDIX

The National Employment Lawyers Association

(NELA) is the only professional membership organization

in the country comprised of lawyers who represent em-

ployees in labor, employment and civil rights disputes.

NELA and its 67 state and local affiliates have a member-

ship of over 3,000 attorneys who are committed to working

on behalf of those who have been illegally treated in the

workplace. NELA strives to protect the rights of its mem-

bers’ clients, and regularly supports precedent-setting

litigation affecting the rights of individuals in the work-

place. NELA advocates for employee rights and workplace

fairness while promoting the highest standards of profes-

sionalism, ethics and judicial integrity.

The Lawyers’ Committee for Civil Rights Under

Law is a non-profit, nonpartisan organization founded in

1963 at the request of President John F. Kennedy to

involve the private bar in providing legal services to

address racial discrimination. The principal mission of the

Lawyers’ Committee is to secure, through the rule of law,

equal justice for all Americans. Its Board of Trustees

includes several past Presidents of the American Bar

Association, past Attorneys General of the United States,

law school deans and professors, and many of the nation’s

leading lawyers. Through the Lawyers’ Committee and its

independent local affiliates, hundreds of attorneys have

represented thousands of clients in employment discrimi-

nation cases across the country. The Lawyers’ Committee,

through its Employment Discrimination Project, has been

continually involved in cases before the Court involving

the proper scope and coverage afforded to federal civil

rights laws prohibiting employment discrimination.

App. 2

The Asian American Justice Center (“AAJC”) is a

national non-profit, non-partisan organization whose

mission is to advance the legal and civil rights of Asian

Americans. Collectively, AAJC and its Affiliates, the Asian

American Institute, Asian Law Caucus and the Asian

Pacific American Legal Center, have over 50 years of

experience in providing legal public policy, advocacy, and

community education on discrimination issues. AAJC have

a long-standing interest in racial discrimination issues

that have an impact on the Asian American community,

and this interest has resulted in AAJC’s participation in a

number of amicus briefs before the courts.

The National Association for the Advancement

of Colored People (NAACP) is a non-profit membership

corporation chartered by the State of New York and traces

its roots to 1909. The NAACP has over 2,200 units in the

United States and abroad. As the nation’s oldest and

largest civil rights organization, its mission is to ensure

the political, educational, social and economic equality of

rights of all persons and to eliminate racial hatred and

racial discrimination. With that, the NAACP has long

fought against discrimination in employment and to

protect the civil rights of workers.

AARP is a nonpartisan, nonprofit membership

organization of people age 50 and older dedicated to

addressing the needs and interests of older Americans.

Almost half of AARP’s more than 36 million members are

in the work force and are, thus, protected by the federal

civil rights laws prohibiting employment discrimination.

The proper interpretation and vigorous enforcement of

these laws is of paramount importance to AARP and its

working members, who rely on them to deter and remedy

invidious bias in the work place. Since 1985, as part of its

App. 3

advocacy efforts, AARP has filed amicus curiae briefs in

many cases in this Court involving the proper construction

and interpretation of Title VII, the Age Discrimination in

Employment Act, the Americans with Disabilities Act, and ~

other federal workplace antidiscrimination statutes. AARP

supports the rights of older workers uhder the ADEA,

whose prohibitions are derived from and interpreted in

pari materia with those of Title VII. Since the Court’s

decision in this case will necessarily impact the ADEA, by

submitting this brief amicus curiae AARP seeks to pre-

serve and protect the rights of all older workers.

The Legal Aid Society - Employment Law Cen-

ter (“LAS-ELC”) is a non-profit public interest law firm

whose mission is to protect, preserve, and advance the

workplace rights of individuals from traditionally under-

represented communities. Since 1970, the LAS-ELC has

represented plaintiffs in cases involving the rights of

employees in the workplace, particularly those cases of

special import to communities of color, women, recent

immigrants, individuals with disabilities, and the working

poor.

The LAS-ELC’s interest in preserving the protections

afforded employees by this country’s antidiscrimination

laws is longstanding. Amicus has a particular interest in

the interpretation of established precedent concerning

Title VII's limitations period, given its involvement in

National Railroad Passenger Corp. v. Morgan, 536 US.

101 (2002). The LAS-ELC has also appeared in this Court

on numerous other occasions both as counsel for plaintiffs,

see, e.g., U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002);

California Federal Savings & Loan Ass’n v. Guerra, 479

U.S. 272 (1987) (counsel for real party in interest), as well

as in an amicus curiae capacity. See, e.g., Burlington

App. 4

Northern and Santa Fe Ry. Co. v. White, 126 S. Ct. 2405

(2006); Suders v. Pennsylvania State Police, 542 U.S. 129

(2004); United States v. Virginia, 518 U.S. 515 (1996);

Harris v. Forklift Systems, 510 U.S. 17 (1993); Interna-

tional Union, UAW v. Johnson Controls, 499 U.S. 187

(1991); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989);

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

oo -_ —rr-