Appendix — Northwest Airlines, Inc. v. Laffey

84-3250 |“ FTTED™

wey 21 1964

ALEXANDER L. STEVAS,

No.

CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1984

NORTHWEST AIRLINES, INC.,

Petitioner,

v.

Mary P. Larrey, et al.,

Respondents.

APPENDIX TO THE PETITION FOR

A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Puitip A. LACOVARA

(Counsel of Record)

WILLIAM R. STEIN

Tuomas D. GOLDBERG

JOHN D. ECHEVERRIA

HuGues Huspparp & Reep

1201 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

(202) 626-6200

Counsel for Petitioner

aaneiuain

TABLE OF CONTENTS

Page

APPENDIX A:

Opinion of Court of Appeals, dated July 20, 1984 (740

en I hoc io genie 6c vc ee obs la

APPENDIX B:

Opinion of Court of Appeals, dated October 20, 1976

eg ie Rr ree 65a

APPENDIX C:

Findings of Fact and Conclusions of Law of the District

Court, dated November 12, 1973 (366 F. Supp. 763) . 161a

APPENDIX D:

Memorandum and Order of the District Court, dated

April 3, 1974 (374 F. Supp. 1382) (denying liquidated

damages, fixing Equal Pay Act recovery period, and

awarding monetary and injunctive relief)......... 220a

APPENDIX E:

Order of the District Court, dated July 10, 1974

(8 EPD 4 9528) (amending findings) ............. 234a

APPENDIX F:

Memorandum and Order of the District Court, dated

April 19, 1978 (16 EPD 4 8317) (denying motion to

SL SS eee, PR rr are 2358

APPENDIX G:

Order of the District Court, dated July 9, 1979 (denying

motion to modify Title VII backpay award) ....... 24la

APPENDIX H:

Order of the District Court, dated July 9, 1979

(denying motion to reconsider adjudication of

es Soa cig a! elu Gad gira bia ee wats 242a

APPENDIX I:

Memorandum and Order of the District Court, dated

July 9, 1979 (481 F. Supp. 199) (fixing Title VII back-

a oo ae fe eae Ele an ge owl ah 243a

APPENDIX J:

Memorandum and Order of the District Court, dated

November 21, 1980 (24 EPD 431,384) (awarding

liquidated damages) OY ee OE ee

il

TABLE OF CONTENTS Continued

Page

APPENDIX K:

Order of the District Court, dated November 30,

1982 (respecting computation of backpay and imple-

mentation of final judgment) ..........----++-. 257a

Exhibit 1 (notice of award of backpay) ........ 268a

Exhibit 2 (description of Laffey lawsuit)........ 273a

Exhibit 3 (proof of claim form) .........-----. 278a

Exhibit 4 (proposed legal notice to be published) . . 281la

APPENDIX L:

Final Judgment of the District Court, dated Novem-

eS 0 er ree re 283a

AppENDIX M:

Order of the District Court, dated January 20, 1983

(denying motion to amend findings) ......------- 288a

AppeNnvIx N:

Judgment of Court of Appeals, dated July 20, 1984 ... 289a

APPENDIX O:

Order of Court ef Appeals, dated August 28, 1984

(denying petition for rehearing) ......---------- 29la

APPENDIX P:

Limited Mandate of Court of Appeals, dated Septem-

eS S ” ean eee 292a

APPENDIX Q:

Dintutealevaived, .....-2++cserchevetev ere see 294a

la

APPENDIX A

OPINION OF THE COURT OF APPEALS

IN “LAFFEY III”

Hnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 83-1033

Mary Pat LaFFEy, et al.

Vv.

NORTHWEST AIRLINES, INC., APPELLANT

AIR LINE Pitots ASSOCIATION, NON-ALIGNED PARTY

No. 83-1034

Mary Part LaFFEy, et al., APPELLANTS

Vv.

NORTHWEST AIRLINES, INC.

AIR LINE Pitots ASSOCIATION, NON-ALIGNED PARTY

No. 83-1167

Mary Part LarFFEy, et al.

V.

NORTHWEST AIRLINES, INC., APPELLANT

AIR LINE PILoTs AsSOcIATION, NON-ALIGNED PARTY

2a

No. 83-1168

MARY PaT LAFFEY, et al., APPELLANTS

v.

NORTHWEST AIRLINES, INC.

AIR LINE PILOTS ASSOCIATION, NON-ALIGNED PARTY

Appeals from the United States District Court

for the District of Columbia

(Civil Action No. 70-2111)

Argued December 8, 1983

Decided July 20, 1984

Phillip A. Lacovara, with whom William R. Stein was

on the brief for Northwest Airlines, Inc., appellant in

Nos. 83-1033 and 83-1167 and appellee in Nos. 83-1034

and 83-1168.

Michael H. Gottesman, with whom Robert M. Weinberg

and Jeremiah A. Collins were on the brief for Laffey,

et al., appellees in Nos. 83-1033 and 83-1167 and appel-

lants in Nos. 83-1034 and 83-1168. Julia Penny Clark

also entered an appearance for Laffey, et al.

Before: GINSBURG, BORK and STARR, Circuit Judges.

Opinion Per Curiam

PER CURIAM: This Equal Pay Act-Title VII class action

concerns the former practices of Northwest Airlines

(NWA) with regard to the employment of cabin attend-

ants. Womer ~*~~loyed by NWA in the all-female cate-

gory “stewarc received less pay than men in the all-

3a

male “purser” category. In addition, NWA _ required

female cabin attendants to share double rooms on layovers

while providing single rooms to male cabin attendants;

it paid male attendants, but not females, a cleaning allow-

ance for uniforms; and it imposed weight restrictions

upon females only.’

The lawsuit challenging these practices commenced in

the summer of 1970 and has been intensely litigated since

its inception. District court adjudications were twice ap-

pealed at interlocutory stages; in response, panels of this

court meticulously reviewed an extensive record. On

November 30, 1982, the district court concluded all tasks

within its charge and entered final judgment. NWA ap-

pealed and plaintiffs cross-appealed.

We affirm the challenged rulings in principal part. On

the few points on which we do not uphold the district

court’s determinations, we specify, precisely, the required

modification so that adjustments to the final judgment can

be calculated without further adversarial contest. Our

opinion thus serves as the court’s closing chapter in this

nearly fourteen-year-old controversy.

T. BACKGROUND

A. Prior Proceedings

Trial of plaintiffs’ multiple charges of NWA violations

of the Equal Pay Act, 29 U.S.C. § 206/d) (1982), and

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

1 The practices cited in text were the predicate for monetary

relief. Several other challenged practices were redressed

solely by injunctive relief: restricting “purser” jobs to men

alone; permitting male cabin attendants, but not females, to

wear eyeglasses ; permitting male attendants, but not females,

to carry luggage of their own choice aboard flights; imposing

flight arrangements under which male attendants, without

regard to length of service, ranked as superior to female

attendants aboard a plane; maintaining a shorter maximum

height requirement for female cabin attendants than for males.

4a

$ 2000e to 2000e-17 (1976 & Supp. V 1981) (Title VII),

commenced in late 1972 and concluded in early 1973. In

November 1973 findings and conclusions, Laffey v. North-

west Airlines, Inc., 366 F.Supp. 763 (D.D.C. 1973) [here-

after, 1973 Findings], the district court determined that

NWA had violated the law in each of the respects alleged

in the complaint. Of dominant importance to the mone-

tary relief awarded plaintiffs, the district court found that

stewardesses and men serving as pursers performed sub-

stantially equal work. The purser/stewardess salary dif-

ferential, the less desirable layover accommodations for

women, and the cleaning allowance limited to men, were

held impermissible under both the Equal Pay Act and

Title VII; the weight limits for women were declared

unlawful under Title VII. In an April 1974 remedial

order, Laffey v. Northwest Airlines, Inc., 374 F.Supp.

1382 (D.D.C. 1974) [hereafter, 1974 Remedial Order],

the district court decreed injunctive relief and specified

back-pay computation formulas. Judgment pursuant to

the April order was entered May 20, 1974.

Both sides appealed. In a painstaking opinion, released

October 20, 1976, a panel of this court affirmed the dis-

trict court “on all substantive questions of statutory in-

fringement” and “uph[e]ld most but not all the [district]

court’s specifications on relief.” Laffey v. Northwest Air-

lines, Inc., 567 F.2d 429, 437 (D.C. Cir. 1976) [hereafter,

Laffey I}. NWA’s petition for rehearing and suggestion

for rehearing en banc were denied September 8, 1977; its

petition for certiorari was denied February 21, 1978. 434

U.S. 1086.

When the case returned to the district court, in March

1978, NWA moved for relief from 1974 injunctive provi-

sions, which had been stayed pending appeal and petition

for certiorari, requiring it to furnish female cabin attend-

ants single rooms on layovers and cleaning allowances for

uniforms. The district court denied NWA’s motion, and

NWA appealed.

— ———maenonDnDWWUEEEE——EE

5a

Again after careful review, on October 1, 1980, we

affirmed the district court’s order. Laffey v. Northwest

Airlines, Inc., 642 F.2d 578 (D.C. Cir. 1980) [hereafter,

Laffey II]. In the process, we observed that the 1974

order, reviewed in Laffey I, did not qualify as a final

judgment because the district court had not at that point

completed its work and disassociated itself from the case.

Id. at 583-84. We noted, however, that the 1974 adjudi-

cation, awarding extensive injunctive relief, was appeal-

able of right under 28 U.S.C. § 1292(a) (1) (1982), and

that “the permanence and pervasiveness of the order’s

injunctive provisions enabled review on the merits of all

interrelated features of the order save those the District

Court had reserved for future adjudication.” Jd. at 584

n.49.

While clarifying that the 1974 district court adjudi-

cation was not a “final decision” within the meaning of 28

U.S.C. § 1291 (1982), we hastened to declare the district

court “entirely right,” Laffey II, 642 F.2d at 584, in

declining NWA’s request to modify the injunction; modi-

fication would have involved reopening issues already de-

cided by that court and “laid to rest” when we affirmed

the district court’s directives in Laffey I. Id. at 584-85.

We then stated with emphasis impossible to obscure that

even if we were convinced of the error of a decision made

on an earlier appeal in this litigation, we would adhere

to the established “law of the case” absent extraordinary

cause to depart from our precedent. Jd. at 585-86.

Pointedly, we cited the First Circuit’s admonition against

reconsideration “after denial of petitions for rehearing

and certiorari.” Jd. at 585 & n.58 (citing Legate v.

Maloney, 348 F.2d 164, 166 (1st Cir. 1965) ).

The district court has now resolved all disputed matters

in this protracted case. We approach the multiple issues

raised by NWA and the three raised by plaintiffs mindful

that “[i]f justice is to be served,” Laffey II, 642 F.2d at

————

6a

585, “[t]here must be an end to dispute.” Jd. (quoting

Legate v. Maloney, 348 F.2d at 164, 166 (1st Cir. 1965) ).

B. Issues on Appeal

We indicate here the order in which this opinion dis-

cusses the issues raised by the cross-appeals, and state,

summarily, our disposition as to each issue.

1. NWA’s Appeal

a. Alleging supervening Supreme Court decisions, NWA

asks us to overturn i) the root determination that the

purser/stewardess pay differential was based on sex, and

ii) the already twice-reviewed determination that the

cleaning allowance for men but not women discriminated

impermissibly on the basis of sex. Discerning no clear

change—indeed no change at all—in the governing law,

we adhere to the law of the case on both issues.

b. Asserting a flaw in the determination that steward-

esses and pursers performed “equal work,” double faults in

the measurement of backpay, oversights in the delineation

of the Title VII class, and error in characterizing the

Equal Pay Act violations as “willful,” NWA urges alter-

ation of prior dispositions on these questions. In view of

the full and fair opportunity NWA had to litigate these

issues in the district court and on appeal in Laffey I, we

hold that “the strong policy of repose,” Laffey II, 642

F.2d at 585, precludes consideration of NWA’s earlier

rehearsed arguments and more recent afterthoughts.

ce. As to the Title VII back-pay accruai period, we

adhere to the law of the case on the nonretroactivity of

that statute’s current two-year limitation. However, we

modify the district court’s specification of a three-year

period borrowed from the District of Columbia’s minimum

wage law or general statute of limitations. Instead, we

hold that, in the unique circumstances presented here, the

time frame most appropriately borrowed is Minnesota’s

two-year limitation on “the recovery of wages . . . under

7a

any federal or state law.” Minn. Stat. Ann. § 541.09(5)

(West Supp. 1982-1983).

d. Reviewing the district court’s award of liquidated

damages under the Equal Pay Act, we conclude that guid-

ance supplied in Laffey I was properly followed and sus-

tain the determination in all respects.

2. Plaintiffs’ Cross-Appeal

a. As to credit for service prior to the passage of the

Equal Pay Act and Title VII, Laffey J instructed only a

“look at the collective bargaining agreement” on remand

to determine whether “longevity” rather than “seniority”

controlled. 567 F.2d at 476. Our opinion did not contem-

plate stripping plaintiffs of the pre-Act experience credits

that the district court initially allowed them for the lim-

ited purpose of calculating the backpay NWA owed for

post-Act service. Failure to accord plaintiffs longevity

credit for all their days of service to NWA as steward-

esses, in determining their post-Act pay level, would

impermissibly project into the post-Act period a sex-based

differential. We therefore reverse the district court’s post-

Laffey I ruling on this point and instruct that court to

recognize plaintiffs’ pre-Act longevity in calculating back-

pay for the relevant, post-Act, time periods.

b. As to interest, the district court properly declined

plaintiffs’ invitation to revisit the 1974 remedial order

provision on the rate of pre-judgment interest. However,

no “law of the case’’ settled the question of post-judgment

interest on liquidated damages. That issue ripened on re-

mand after our Laffey I decision. Reviewing the district

court’s ruling on the merits, we reverse the determina-

tion and hold plaintiffs entitled to post-judgment interest

on liquidated damages.

In sum, we instruct the district court on remand to

1) allow backpay under Title VII beginning two years,

not three years, prior to the filing of the first EEOC

8a

charge; 2) credit plaintiffs with pre-Act longevity in cal-

culating backpay due for post-Act service; and 3) allow

post-judgment interest on liquidated damages. In all

other respects, we affirm the district court’s dispositions.

Il. ALLEGED SUPERVENING SUPREME CoURT PRECEDENT

Laffey I affirmed district court determinations that the

purser /stewardess pay differential, and the cleaning allow-

ance for men’s uniforms but not women’s, violated the

Equal Pay Act and Title VII. Supervening Supreme

Court decisions, NWA maintains, reveal that those affir-

mations were wrong. NWA cites County of Washington

v. Gunther, 452 U.S. 161 (1981), as supervening prece-

dent establishing that the purser/stewardess pay differen-

tial was lawful, and relies on General Electric Co. v. Gil-

bert, 429 U.S. 125 (1976), with regard to the cleaning

allowance. Neither High Court decision, we conclude,

alters the law earlier applied in this case. We therefore

reaffirm Laffey I as the law of the case and of the

circuit.?

A. The Purser/Stewardess Pay Differential

The alleged supervening decision, County of Washing-

ton v. Gunther, 452 U.S. 161 (1981), resolved this “sole

issue”: whether female jail guards who did not prove their

work equal in skill, effort, and responsibility to the work

of male jail guards, and therefore failed to establish an

Equal Pay Act violation, could nonetheless challenge their

rate of pay as discriminatory under Title VII. 452 U.S.

at 166 n.8. The Supreme Court answered “yes”; it held

that despite complainants’ failure to satisfy the equal

2A decision of one panel of this court may not be over-

ruled by another panel; a panel’s decision may be rejected

only by the court en banc. See Brewster v. Commissioner of

Internal Revenue, 607 F.2d 1369, 1373 (D.C. Cir.), cert.

denied, 444 U.S. 991 (1979); United States v. Caldwell, 543

F.2d 1333, 1369 n.19 (D.C. Cir.) (citing cases), cert. denied,

423 U.S. 1087 (1976).

‘nein

9a

work standard, they could remain in court er Title VII

on their charge that the County had set “the wage scale

for female guards, but not for male guards, at a level

lower than its own survey of outside markets and the

worth of the jobs warranted.” /d. at 166. Title VII, the

Court explained, in contrast to the Equal Pay Act, does

not bar “claims of discriminatory undercompensation .. .

merely because [the female complainants] do not perform

work equal to that of male {employees].” /d. at 181.

In imaginative argument, NWA asks us to spy a silver

lining for employers in Gunther. NWA urges that the

Supreme Court, in the process of rejecting a proffered

restricted reading of Title VII, enlarged the scope of the

Equal Pay Act’s residuary affirmative defense, which

permits payment of different wages if “made pursuant to

. . . @ differential based on any other factor other than

sex.”* For purposes of this argument, NWA concedes

that pursers and stewardesses in fact performed “equal

work” within the meaning of the Equal Pay Act.‘ But

grace a Gunther, NWA contends, an employer “who prem-

ises a wage differential on his determination that two

jobs are different” escapes Equal Pay Act and Title VII

liability, “even if that conclusion is later found to be mis-

taken.” Brief for Northwest Airlines, Inc. [hereafter,

NWA Brief) at 33.

*The Act specifies four affirmative defenses; they permit

payment of different wages for equal work if “made pursuant

to (i) a seniority system; (ii) a merit system; (iii) a system

which measures earnings by quantity or quality of production;

or (iv) a differential based on any other factor other than

sex.” 29 U.S.C. $ 206(d, (1) (1982).

* Specifically, in presenting its Gunther supervening law

position, NWA acknowledges “the district judge’s determina-

tion of the objective equality of the [purser and stewardess]

jobs and the amount and nature of the pay differential.” See

Reply Brief of Northwest Airlines, Inc. [hereafter, NWA

Reply Brief] at 17.

10a

For two reasons we cannot indulge NWA’s endeavor to

persuade us that Gunther widened the Equal Pay Act’s

exception for pay differentials “based on a bona fide use

of ‘other factors other than sex.’” Gunther, 452 U.S. at

170 ‘quoting 29 U.S.C. § 206/d) (1) (iv) (1982). First,

NWA’s position is incompatible with the statutory design.

Under the Fair Labor Standards Act, which Congress

adopted as the procedural and remedial framework for

Equal Pay Act claims, a court has discretion to disallow,

in whole or in part, liquidated (double) damages “if the

employer shows to the satisfaction of the court that the

act or omission giving rise to [the violation] was in good

faith and that he had reasonable grounds for believing

that his act or omission was not a violation of t{he Act].”

29 U.S.C. $260 (1982). NWA contends that an em-

ployer’s actual but erroneous belief that two jobs are in

fact different wholly shelters the employer from equal pay

for equal work liability, NWA Brief at 14, 33; that con-

tention is not synchronous with a congressional direction

giving judges discretion only to limit, not to eliminate,

damages when an employer, in “good faith,” erroneously

but reasonably believed his conduct conformed to legal

requirements.’

5’ We note, moreover, that Laffey I remanded the question

of NWA’s “good faith” for reconsideration by the district

court, and supplied this instruction:

Nor is it enough that it appear that the employer probably

did not act in bad faith; he must affirmatively establish

that he acted both in good faith and on reasonable grounds

{the former involving a “subjective inquiry,” the latter,

“an objective standard”). That duty is accentuated here,

where the prevalence of sex-discrimination litigation

against the airline industry naturally prompts the ques-

tion whether NWA should reasonably have known that

neither its own tradition [reserving pursers jobs and pay

for men], the industry custom nor the employees’ silence

was a reliable indicium of the demands of the law.

Laffey I, 567 F.2d at 465 (footnotes omitted; quotations in

brackets from id. at 464).

————x———x— <<

lla

Second, NWA’s inflation of the Equal Pay Act’s residu-

ary defense to exonerate employers who in fact failed to

reward equal work with equal pay, so long as they honestly

believed the jobs in question in fact were different, Reply

Brief of Northwest Airlines, Inc. [hereafter, NWA Reply

Brief] at 3-4, 19, is not sensibly extracted from Justice

Brennan’s opinion for the Court in Gunther. That decision

interpreted Title VII to accommodate sex-based discrimi-

nation in compensation claims that did not fit within the

equal pay for equal work principle. Specifically, Gunther

rejected the argument that the “Bennett Amendment” to

Title VII, 42 U.S.C. $ 2000e-21h) (1982) * confined Title

VII sex-based wage discrimination complaints to claims

that could also be brought under the Equal Pay Act.

Gunther held that the Bennett Amendment had a more

modest design: it simply incorporated into Title VII the

Equal Pay Act’s four affirmative defenses.’ The Gunther

opinion left untouched governing law on “equal pay for

equal work regardless of sex.” See Corning Glass Works

v. Brennan, 417 U.S. 188, 190 (1974).

NWA features most prominently, see NWA Brief at

28-29, lines clipped from a passage in Gunther in which

Justice Brennan focused on the Equal Pay Act’s fourth

affirmative defense, applicable to differentials “based on

any other factor other than sex.” 29 U.S.C. $ 206/d) (1)

(iv) (1982). In this passage, Justice Brennan stated that

genuinely non-sex-based factors, for example, “a bona

fide job rating system,” might be used by an employer in

setting compensation, withou’ offense to federal law, even

when such factors have a disparate impact on one sex.

Gunther, 452 U.S. at 170-71 & n.11.

* The Bennett Amendment provides that compensation dif-

ferentiation “authorized by” the Equal Pay Act “shall not be

an unlawful employment practice under [Title VII].” 42

U.S.C. § 2000e-2(h) (1982).

7 See supra note 3.

i

12a

Basing wages on “a bona fide job rating system”—a

sex-neutral, objective measure—exemplifies the legitimate

employer conduct Congress envisioned as a permissible

“use of ‘other factors other than sex,’ ” Gunther explained.

Id. NWA, however, employed no “bona fide job rating

system” or other sex-neutral, objective standard ®* in set-

ting wage rates for pursers and stewardesses. The pas-

sage NWA clips, read in its entirety, contains ac sugges-

tion that Congress also envisioned as a bona fide “other

factor’ an employer’s mere belief, untested by any objec-

tive job rating system, that men and women are not en-

gaging in equal work. Indeed, a fair reading of the

passage indicates just the opposite.?

5 See, e.g., Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136-

37 (5th Cir. 1983) (indicating that experience, if in fact the

basis for a pay differential, qualifies as a “factor other than

sex,” but holding that even when the employer introduces

evidence demonstrating a male employee’s greater experience,

plaintiff must be accorded a full and fair opportunity to rebut

proof that the pay differential was in fact attributable to a

demonstrat~4 objective, non-sex-based factor). Plemer re-

versed a discrict court judgment for defendant, and empha-

sized that “once [an Equal Pay Act] plaintiff shows that she

was paid less than a male who was performing substantially

the same job,” “the burden both of production and of [ulti-

mate] persuasion” shifts to the employer. Jd. at 1136. Cited

to us by NWA as a supplemental authority, see Fep. R. App.

P. 28(j); D.C. Cm. R. 8(k), Plemer offers not a shred of sup-

port for NWA’s thesis that no liability for an Equal Pay Act

violation is incurred by an employer who sincerely believed

jobs a court finds equal were in fact different.

®» NWA constantly tenders cropped snippets that convey less

than comprehensively the Court’s statements in Gunther. As

a further example, NWA quotes the Court as “observ[ing]

that a prohibition against discrimination against women ‘be-

cause of their sex’ strikes [only] at ‘disparate treatment of

men and women.’”’ NWA Brief at 29 (NWA’s emphasis). The

Court’s opinion places the emphasis elsewhere: “In forbidding

employers to discriminate against individuals because of their

sex, Congress intended to strike at the entire spectrum of

disparate treatment of men and women resulting from sex

13a

Gunther, in the portion featured by NWA, addressed

only the impact Equal Pay Act affirmative defenses

might have on “the outcome of some Title VII sex-based

wage discrimination cases.” Gunther, 452 U.S. at 170,

175 n.14. NWA, however, maintains that the Court’s

discussion should be read to augur incorporation of a

line of Title VII “disparate treatment” decisions into

Equal Pay Act law.’° Even if we could find in Gunther

the between-the-lines dictum NWA ascribes to the Court,

NWA’s argument for exoneration from equal pay lia-

bility would not succeed. <

The Title VII decisions NWA cites unexceptionally in-

volve situations in which the employer did not classify

jobs overtly by sex (or race). E.g., Texas Department of

Community Affairs v. Burdine, 450 U.S. 248 (1981). In

that setting, where sex-based categorization, if it exists,

is covert, the Court has elaborated rules for establishing

discriminatory intent or the lack thereof. This case, how-

ever, involves overt sex classification—explicitly disparate

stereotypes.”” Gunther, 452 U.S. at 180 (quoting and adding

emphasis to the Court’s footnote in Los Angeles Dep’t of

Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978),

in turn quoting Sprogis v. United Air Lines, Inc., 444 F.2d

1194, 1198 (7th Cir.), cert. denied, 404 U.S. 991 (1971)). It

is remarkable that NWA has selected and adjusted to suit

its purpose words that originated with the Seventh Circuit in

Sprogis, a decision holding an airline’s no-marriage rule for

stewardesses unlawful under Title VII.

‘0 The Court indicated in Gunther that the Equal Pay Act’s

fourth affirmative defense might shelter a pay standard other-

wise vulnerable under Title VII as “fair in form, but dis-

criminatory in operation.” 452 U.S. at 170 (quoting Griggs

v. Duke Power Co., 401 U.S. 424, 481 (1971)). NWA seizes

on this acknowledgment that Equal Pay Act law may limit

some Title VII neutral rule/“disparate impact” claims, and

insists that the Court somehow meant to infuse into Equal

Pay Act law Title VII “disparate treatment” analysis de-

veloped in cases of alleged nonovert sex classification not

even cited en passant in Gunther.

——————_

l4a

treatment. Purser jobs were reserved for men only,

the stewardess class was all-female." NWA has cited no

case, nor do we know any, suggesting that a Title VII

or Equal Pay Act plaintiff must demonstrate, beyond

sex-segregated job classifications and unequal pay for

equal work, the employer’s evil mind, in NWA’s words,

“disparate treatment” that proceeds from “discrimina-

tory animus” or a “bad-faith attempt to evade the law.”

NWA Brief at 14, 39.

In sum, so far as we can tell, neither Congress nor the

Court has ever entertained the notion that an employer

who intentionally classifies jobs by sex, and in fact pays

women less for the same work, can achieve exoneration

by showing he sincerely thought the jobs he separated by

sex were different. But see NWA Brief at 33; NWA

Reply Brief at 3-4, 19. Justice Brennan’s opinion in

Gunther, it is certain, establishes no such novel law.

Where, as here, there is an actual intent to separate jobs

by sex, and the employer is found in fact to have paid

women less for equal work, all precedent in point indi-

cates that disparate treatment is solidly established.”

11 From 1947, when the purser classification was established,

until June 15, 1967, NWA confined the purser position to

males. Betweeen 1949 and 1957, NWA hired men for a second

cabin attendant position. Men engaged for these posts were

called “flight service attendants” (FSAs). FSAs performed

essentially the same duties and received the same pay as fe-

male cabin attendants. Unlike the all-female stewardess class,

however, FSAs had a contractual right to fill purser vacancies

and were deemed qualified for purser posts upon completion of

the FSA probationary period. By May 1965, all but three of

the FSAs who remained with NWA had been elevated to

purser positions. The three men who had not advanced to the

purser category were voluntarily based in Hawaii. See 1973

Findings, 366 F.Supp. at 766-67, 772-73 (Findings of Fact

(FOF) 11-17, 37-38).

12 An employer’s “discriminatory motive” or “desire to pay

men—because they were men—more than [women received],”

far from ranking as an “essential element” of a plaintiff’s

lda

In Goodrich v. International Brotherhood of Electrical

Workers, 712 F.2d 1488, 1493 n.11 (D.C. Cir. 1983), we

noted that the Equal Pay Act’s residuary defense cover-

ing “factors other than sex” affords no “convenient es-

cape from the Act’s basic command.” Unless and until

Congress or the Supreme Court declares otherwise, our

dominant guides remain the command that “equal work

will be rewarded by equal wages,” S. Rep. No. 176, 88th

Cong., 1st Sess. 1 (1963), and the instruction that the

Equal Pay Act is a “broadly remedial” statute targeting

an “endemic problem of employment discrimination,” by

firmly establishing as federal law the “principle of equal

pay for equal work regardless of sex.” Corning Glass

Works, 417 U.S. at 190, 195, 208. NWA’s argument, at-

tributing to Gunther a meaning that would substantially

reduce the force of the federal equal pay requirement, is

artful but unavailing; it fails to elevate from the un-

tenable to the plausible the claim that in Laffey I we in-

correctly stated the law governing the purser/stewardess

pay differential.

B. The Uniform Cleaning Allowance

Laffey I affirmed the district court’s determination that

NWA discriminated on the basis of sex by providing a

male-only uniform cleaning allowance. 567 F.2d at 456.

Laffey II held a second challenge to the district court’s

ruling on the cleaning allowance unwarranted by any

“circumstance capable of generating injustice from ad-

herence to the law of the case.” 642 F.2d at 586. De-

spite the stern “law of the case” analysis and admoni-

tion in Laffey II, id. at 585-86, and the court’s further

claim, as NWA maintains, see NWA Brief at 14, 34, is not even

relevant, under the Supreme Court’s decisions, to the deter-

mination whether explicitly sex-based classification violates

Title VII. See Arizona Governing Comm. for Tax Deferred

Annuity & Deferred Compensation Plans v. Norris, 103

S. Ct. 3492 (1983); Los Angeles Dep’t of Water & Power v.

Manhart, 435 U.S. 702 (1978). See also infra note 15.

l6a

statement that it considered Laffey I’s cleaning allow-

ance holding “fully accurate,” id. at 586,% NWA seeks

to continue the fray. It cites General Electric Co. v.

Gilbert, 429 U.S. 125 (1976), and describes that case as

an “intervening decision,” NWA Brief at :7, although

Gilbert issued over two years before Laffey II was

argued.*

Gilbert was a Title VII challenge that turned on the

Court’s conclusion that the disability program in ques-

tion did not group persons by “gender as such.” Gilbert,

429 U.S. at 134-35 (quoting Geduldig v. Aiello, 417 U.S.

484, 496 & n.20 (1974)). The issue was an employer’s

exclusion of women unable to work due to pregnancy or

childbirth from disability benefits. The program did not

divide potential recipients by “gender as such,” the Court

reasoned, because one of the two groups comprised “non-

pregnant persons,” and thus “include{d] members of

both sexes.” Gilbert, 429 U.S. at 134-35. In the absence

of classification based upon “gender as such,” the Court

inquired whether there was any “gender-based discrimi-

13The court reviewed its prior holding, not for NWA’s

benefit, but “‘in the interest of soundness of the law for the

future.” Laffey II, 642 F.2d at 586. It acknowledged that

outlays for uniforms and their maintenance, when made

primarily for the employer’s benefit, do not count as wages

under the Fair Labor Standards Act. 7d. at 588. Allow-

ances that primarily serve the interest of the employee, how-

ever, do qualify as wages, the court stated. The male-only

cleaning allowance, the court concluded, was a wage supple-

ment, a benefit to the employee rather than a “boon to the

employer.” Jd. at 589. Had the allowance primarily benefited

the employer rather than the employee, the court observed,

“NWA obviously would have extended it to female cabin

attendants as well.” Jd.

14 Moreover, the precedential force of Gilbert had become

clouded before presentation of the Laffey II appeal. See Los

Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702,

723-25 (1978) (Blackmun, J., concurring).

17a

natory effect.” Jd. at 137-39. NWA relies on the “dis-

criminatory effect” portion of the Gilbert anclysis.s NWA

Brief at 53.

Even in Gilbert itself, however, the Court indicated

that “discriminatory effect” analysis should not come into

play when the program at issue divides recipients into

groups classified by “gender as such.” 429 U.S. at 136-

37 & n.15.% That is the situation here—all male cabin

attendants received a uniform benefit package with a

cleaning allowance, all female attendants received a dif-

ferent package without a cleaning allowance.*®

Congress has overruled Gilbert prospectively “to pro-

hibit sex discrimination on the basis of pregnancy,” ?”

and the Supreme Court believes Congress “also rejected

the test of discrimination [Gilbert] employed.” Newport

News Shipbuilding & Dry Dock Co. v. EEOC, 103 S. Ct.

2622, 2627, 2631 (1983). In its most recent expression

1S NWA, in its Gilbert argument, manifests a blindspot

similar to the one evident in its failure to perceive, in pre-

senting its Gunther argument, that when an employer inten-

tionally classifies jobs or job benefits by sex, one need not

search further to find differential treatment based upon gen-

der. Compare, e.g., Frontiero v. Richardson, 411 U.S. 677

(1973) with Personnel Administrator v. Feeney, 442 U.S. 256

(1979).

16 NWA, in its Reply Brief at 27-28, suggests that we view

uniform-related benefits as a “grooming” issue with no dis-

criminatory implications because of the “conventional dis-

tinction” in apparel men and women wear. While it is too late

for NWA to dress the matter in new garb, we note that the

question here is not whether men can be required to wear

pants, and avoid kilts. Cf. Willingham v. Macon Tel. Pub. Co.,

507 F.2d 1084 (5th Cir. 1975) (en banc) (holding that Title

VII is not violated by an employer’s refusal to hire men (but

not women) with long hair). Women’s clothes require clean-

ing just as men’s do; and prescribing more costly uniforms

for stewardesses was NWA’s decision, not a benefit women

sought or an action impelled by the market or convention.

17 See Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified at

42 U.S.C. § 2000e(k) (1982) ).

aaa

18a

in point, the Court left no doubt that, when classification

by sex is undisguised, there is no need to consider, as

Gilbert did, “the average monetary value of the [overall

benefit package in question] to male and female em-

ployees.” Jd. at 2632 n.26. Further, the Court quoted

with apparent approval the EEOC’s position that it is

not “a defense under Title VII to a charge of sex dis-

crimination in benefits that the cost of such benefits is

greater with respect to one sex than the other.” Id.

(quoting 29 C.F.R. § 1604.9(e) (1983) ).

In Laffey II, the court described the cleaning allowance

“as simply another supplement to male salaries.” 642

F.2d at 589. Gilbert presents no occasion for us to study

again that twice-studied issue. See id. at 586.

III. ADDITIONAL LAW OF THE CASE AND WAIVER ISSUES

A. Laffey I Holdings Challenged as “Clearly Erroneous”’

NWA does not dispute that Laffey I “actually decided”

two issues which it now seeks to relitigate: first, that

“equal work” was performed by NWA stewardesses and

pursers, and second, that NWA, as a matter of law, could

have “willfully” violated the Equal Pay Act notwithstand-

ing the absence of an “iniquitous . . . state-of-mind.”

Laffey I, 567 F.2d at 461; NWA Brief at 11 nl, 13.

NWA seeks to reopen these two issues, not by posting the

existence of supervening case law, but by arguing that

our prior holdings were “clearly erroneous” and that

adherence to law of the case in these instances “would

work a manifest injustice.” Melong v. Micronesian Claims

Commission, 643 F.2d 10, 17 (D.C. Cir. 1980) (quoting

White v. Murtha, 377 F.2d 428, 432 (5th Cir. 1967) ).'s

18 The Supreme Court recently noted approvingly the dual

elements of “clear error’ and “manifest injustice” in law of

the case doctrine, citing the White v. Murtha decision on which

this court relied in its Melong analysis. Arizona v. California,

—— U.S. ; , 103 S. Ct. 1382, 1891 n.8 (1983).

19a

Because we perceive no error whatever in Laffey I’s dis-

position of these two issues, let alone the “clear” error

and “manifest injustice” that would warrant departure

from the law of the case, we reject NWA’s arguments and

reaffirm the holdings of Laffey I with respect to the issues

of equal work and willfulness.

Moreover, we take this opportunity to emphasize that

this court will not, absent truly “exceptional circum-

stances,” Laffey IJ, 642 F.2d at 585, look favorably on

arguments against the law of the case which fall only

under the “manifest injustice” rubric.'® We do not intend

to allow this avenue of attack on the law of the case to be-

come an auxiliary vehicle for the repetition of arguments

previously advanced, without success, in appellate briefs,

petitions for rehearing, and petitions for certiorari.

1. Equal Work

In its 1973 Findings, the district court concluded that

the jobs of purser and stewardess at NWA “require equal

skill, effort and responsibility and are performed under

similar working conditions.” 366 F. Supp. at 788, 789

(Finding of Fact (FOF) 78; Conclusions of Law 2,4).

In Laffey I, this court explicitly affirmed this finding and

conclusion, 567 F.2d at 453, thus establishing the equal

work prerequisite to Equal Pay Act liability as the law

of the case.

19 Laffey II, 642 F.2d at 585-86, set out the following situ-

ations, drawn from Greater Boston Television Corp. v. FCC,

463 F.2d 268, 278-79 (D.C. Cir. 1971), cert. denied, 406 U.S.

950 (1972), in which a court may recall its mandate, to illus-

trate circumstances justifying a deviation from the law of the

case:

{[T]o correct clerical mistakes, to clarify [the] opinion or

mandate, to remedy fraud on the court or other miscon-

duct, to avoid divergent results in cases pending simul-

taneously, or to minister to other similar aberrations.

No such aberrations are present in the instant case.

20a

NWA’s challenge to this holding hinges on its inter-

pretation of two of the district court’s findings of fact in

1973. In one pivotal finding, FOF 65, the district court

described the “chain of command” for an NWA flight:

If one purser is aboard, he is denominated the Senior

Cabin Attendant irrespective of his relative length

of service as compared to the other attendants. If

two or more pursers are aboard the flight, the most

senior purser is the Senior Cabin Attendant. If no

purser is aboard the flight, the most senior steward-

ess or FSA is the Senior Cabin Attendant.

1973 Findings, 366 F. Supp. at 785. The nature and scope

of a Senior Cabin Attendant’s supervisory responsibilities

is described in another critical finding, FOF 67:

Stewardesses who serve as Senior Cabin Attendant

are subject to discipline if they fail to carry out

their “supervisory” responsibilities, and are held

just as accountable as pursers who fail to carry out

their “supervisory” responsibilities.

Id. The district court also noted in this latter finding that

NWA had no merit pay adjustment whereby either

pursers or stewardesses who “supervise” effectively were

paid more than less capable or effective supervisors.

Seizing upon the district court’s recognition in FOF 65,

above, that pursers supervised stewardesses, but not vice

versa, NWA argues vehemently that the two jobs cannot

be deemed “equal” because “[{jlobs that entail different

degrees of supervisory responsibility are not equal within

the meaning of the Equal Pay Act.” NWA Brief at 41.

Next, relying upon the court’s description in FOF 67,

above, of the cabin attendants’ “accountability” for the

discharge of their supervisory duties, NWA maintains

that the district court’s findings “compel the conclusion

that the supervisory responsibility had real content” and

that Laffey I’s conclusion that the pursers’ supervisory

function was “insignificant” thus “actually contradicted

the trial judge’s findings.” Jd. at 42.

ities

2la

We cannot accept either branch of NWA’s argument.

It is, of course, elementary that “jobs need not be iden-

tical in every respect before the Equal Pay Act is appli-

cable .. . .” Corning Glass Works v. Brennan, 417 U.S.

188, 203 n.24 (1974). In Laffey I, this court explained:

[T]he phrase “equal work” does not mean that the

jobs must be identical, but merely that they must

be “substantially equal.” A wage differential is jus-

tified only if it compensates for an appreciable varia-

tion in skill, effort or responsibility between other-

wise comparable job work activities.

567 F.2d at 449 (citations omitted). This “substantially

equal” test, which has been adopted by no fewer than nine

other circuits, Thompson v. Sawyer, 678 F.2d 257, 272

n.12 (D.C. Cir. 1982), necessarily implies that there can

be job responsibilities—including supervisory duties—so

“ “nsubstantial or minor’” as not to “ ‘render the equal

pay standard inapplicable.’” Laffey I, 567 F.2d at 449

(quoting 29 C.F.R. § 800.122 (1975) ).

Therefore, to the extent that NWA’s argument suggests

that any difference in supervisory responsibility renders

jobs unequal, it is manifestly incorrect as a matter of law.

Critically, the authority NWA cites as support for this

proposition is not, in fact, inconsistent with the “substan-

tially equal” test.*° Indeed, NWA itself acknowledges

20 NWA cites Usery v. Richman, 558 F.2d 1318, 1321 (8th

Cir. 1977) ; Noles v. Concord Lace Corp., 25 FEP Cas. (BNA)

367, 370 (M.D.N.C. 1980), and 29 C.F.R. $§ 800.122, 800.130

(1983), as authority for its assertion that “[j]obs that entail

different degrees of supervisory responsibility are not equal

within the meaning of the Equal Pay Act.” NWA Brief at 41.

None of these authorities conflict with the view of the court

in Laffey J that supervisory responsibilities can be so minor

as not to render two jobs unequal.

Indeed, NWA grossly misreads Usery’s holding. In Usery,

the court explicitly followed the Eighth Circuit’s use of the

“substantially equal” standard of comparison in evaluating

the work of a male cook and four female cooks. 558 F.2d at

22a

several other cases in which supervisory responsibilities

were found to be too minor to warrant a finding of

unequal responsibility. See Hill v. J.C. Penney Co., 688

1320. That case in no wise stands for the proposition that any

difference in supervisory responsibilities, without more, auto-

matically works a cognizable legal difference in jobs. To the

contrary, NWA conveniently and inexplicably overlooks the

clear statements in Usery that the male employee had differ-

ent responsibilities than female employees, worked during

the cafe’s busiest hours, was given greater duties of heavy

lifting, was responsible for training other employees, and

“had authority to make effective recommendatiors with re-

gard to discipline.” All this was sufficient for the Eighth

Circuit to conclude, in affirming the district court’s factual

findings, that the job of the male employee had “[e]nough

substantial distinctions {as to both] effort and responsibility

...” to render it legally different from the jobs of the four

female employees. That case is a far cry from the instant

situation.

Similarly, in Noles the district court employed a “substan-

tially equal” analysis in finding that the work of one male

employee, who was “in charge of” an entire shift in one

departinent of a textile mill, was not equal to that of the

plaintiffs. Since the Noles opinion does not describe the nature

of the male worker's supervisory responsibilities, NWA cannot

plausibly maintain that the case stands for the proposition

that any difference in supervisory duties renders jobs unequal.

Moreover, another male worker nad heavy lifting functions

and was one of only a few employees trained in the operations

of a particular kind of plant machinery.

Finally, NWA can find no support in the cited Wage and

Hour Division of the Department of Labor regulations. On

the contrary, 29 C.F.R. § 800.122 clearly states that “[i]nsub-

stantial or minor differences in the degree or amount of skill,

or effort, or responsibility required for the performance of

jobs will not render the equal pay standard inapplicable.” Far

from offering support to NWA at this late stage of the litiga-

tion, this section, as noted in the text above, was invoked by

the Laffey I —_ in its discussion of equal work. Nor does

§ 800.130 provide any comfort to NWA. That section states,

inter alia, the common-sense proposition that if an employee

assumes supervisory responsibilities during the absence of the

23a

F.2d 370, 378-74 (5th Cir. 1982) : Hodgson v. American

Bank of Commerce, 447 F.2d 416, 422 (5th Cir. 1971).

NWA’s claim that Laffey I’s finding of equal work

| “actually contradicted” the district court’s findings is also

patently incorrect. As we understand NWA’s argument.

FOF 67, when read together with FOF 65. “compels” the

conclusion that the district court viewed the supervisory

responsibilities as not insubstantial. This contention,

however, plainly overlooks the district court’s express find-

ing that the pursers’ supervisory functions “require no

greater skill, effort or responsibility than the other func-

tions assigned to all cabin attendants,” 1973 Findings,

366 F. Supp. at 786 (FOF 69), and its further explicit

finding of equal “skill, effort and responsibility” on the

part of stewardesses and pursers, id. at 788-89 (FOF

78; Conclusions of Law 2,4). It follows as ineluctably as

night follows day that the district court found that the

pursers’ supervisory duties did not alter the equivalence

of the two jobs under scrutiny in this case,*!

- ee ee

- ow ne es «

regular supervisor, higher wage rates to such a “relief”

supervisor may be appropriate. But to embrace this proposi-

tion scarely means that we should read out of the regulations

the bedrock principle that “insubstantial or minor differences”

in skill or responsibility do not constitute a legally significant

distinction between jobs. The issue is not, as NWA would

have it, whether there are “different degrees of supervisory

responsibility” but whether the differences are insubstantial

and minor. As to that issue, NWA’s arguments fail completely.

| ** NWA claims that FOF 69 reflects an “erroneous assump-

tion” by the district court that “the issue under the Equal

Pay Act is whether the jobs are more alike than they are

different ....” NWA Brief at 42. This argument falls before

the express language and plain meaning of FOF 69—that the

supervisory functions “require no greater... . effort or re-

sponsibility.” NWA is conveniently seeing ghosts in conjur-

ing up the image of a district court—eleven years and two

appeals ago—having fallen into error by embracing allegedly

erroneous assumptions.

ee

e a ee eee

24a

There is, in cutting through the prolific underbrush

planted in our way by NWA, upon analysis no conflict

whatever between the district court and this court as to

the importance of the supervisory duties assigned to

pursers. Laffey I affirmed the district court’s finding that

“NWA purser and stewardess positions are substantially

equal within the intent of the Equal Pay Act....” 567

F.2d at 453. NWA has come forward with nothing to

suggest that this affirmance of the district court’s con-

clusion with respect to the importance of supervisory

duties was in error. NWA’s argument, based ultimately

on a tortured reading of the district court’s findings and

an inaccurate portrayal of the applicable law, fails.

2. Willfulness

Under 29 U.S.C. § 255(a) (1976), a “willful” violation

of the Fair Labor Standards Act (FLSA), of which the

Equal Pay Act is a part, triggers a three-year, as opposed

to the Act’s ordinary, two-year statute of limitations. In

Laffey I, this court determined that NWA’s violation of

the Equal Pay Act had been “willful” within the meaning

of section 255/a), 567 F.2d at 463, thus rendering NWA

liable for a third year of backpay. In reaching this con-

clusion, the court canvassed the legislative history of sec-

tion 255/a) and rejected NWA’s suggestion that a viola-

tion must be animated by a bad purpose or evil intent to

be deemed willful. /d. at 461. Instead, the court deter-

mined that employer noncompliance with the Equal Pay

Act is “willful” in at least two other instances: where the

employer “is cognizant of an appreciable possibility that

he may be subject to the statutory requirements and fails

to take steps reasonably calculated to resolve the doubt.”

and where “an equally aware employer consciously and

voluntarily charts a course which turns out to be wrong.”

Id. at 462.

NWA was held to have failed the second branch of this

test:

ts Nees ills We

25a

NWA not only knew of the Equal Pay Act and its

content but also correctly understood its prohibition

on different salary levels for men and women per-

forming substantially similar work. With little or

nothing beyond internal consideration by laymen—

even after the present legal challenge got under

way—the company consciously though erroneously

concluded that its treatment of pursers and steward-

esses was unaffected by the Act. We deem that suffi-

cient to comprise willfulness; in the District Court’s

words, “[t]he conduct of the Company in the exer-

cise of that judgment was willful.”

Id. at 463 (citation omitted) .”

In this appeal, NWA argues that the law of the case

established in Laffey I is “clearly erorneous” and the

source of “manifest injustice,” once again urging upon us

a contrary analysis of the legislative intent undergirding

section 255(a)}. NWA contends that a proper reading of

the legislative history of the 1966 FLSA amendments

“confirms that Congress meant {the willfulness standard]

to encompass only intentiona! disregard for the law. rather

than the deliberate-but-erroneous test adopted” in Laffey

I. NWA Brief at 23. For the reasons stated below, we

disagree with NWA as to the proner test of willfulness

under the Equal Pay Act. Accordingly, we reaffirm Laf-

fey I's finding that NWA willfully violated the Act

within the meaning of section 255/a).

In recasting its version of the relevant legislative intent.

NWA argues that the Laffey I court was erroneously of

the view that there was no relevant legislative history to

shed light on the pivotal word, “willful.” NWA Brief at

85. NWA accordingly invites us to focus on three un-

adopted 1965 bills which were the predecessors of the 1966

*2 Similar considerations regarding NWA’s meager efforts

to ascertain its obligations under the Equal Pay Act were

central to the district court’s award of liquidated damages, on

remand from the decision in Laffey J, as discussed infra in

section V.

26a

amendments. NWA deems “crucial” certain portions of

the hearings on one of those bills, H.R. 8259, 89th Cong.,

Ist Sess. (1965), and the report of the House Education

and Labor Committee on a second bill, H.R. 10518. H.R.

Rep. No. 871, 89th Cong., 1st Sess. (1965). The impor-

tance of the latter is touted on the basis that it represents

the “first appear[ance] [of section 255(a)] in its present

form.” NWA Reply Brief at 42.*

The original administration-sponsored bill, H.R. 8259,

sought, inter alia, to increase the limitations period to

three years for all FLSA claims, and accordingly did not

prescribe willfulness as a precondition to liability for the

third year. NWA attempts to fashion a favorable inter-

pretation of the willfulness provision ultimately incor-

porated into section 255/a) in the following manner: first,

NWA summarizes a few snippets of testimony against

H.R. 8259,% and then notes that at the conclusion of the

27 NWA claims that the Laffey J court “overlooked” this

committee report. Jd. While the opinion in Laffey I does not

expressly refer to the report, it is clear that the court was

aware of the genesis of section 255(a) as we know it. See

567 F.2d at 460 & n.222 (reference to hearings on H.R. 8259).

Even though neither party called the court’s attention to the

committee report in Laffey J, there is no reason to believe that

the court was unaware of it. Moreover, NWA baldly over-

argues the point that the Laffey I court was operating with-

out benefit of the enlightening legislative history which NWA

has unearthed at the eleventh hour. NWA says that the

Laffey I court fashioned its “willfulness” test “on the impres-

sion that there was no relevant legislative history.” NWA

Brief at 85. Laffey I said no such thing, nor did it imply as

much. Rather, the court noted, quite correctly, that it had

uncovered no “clearcut statement in the legislative history as

to why the extension to three years was thus encumbered.”

567 F.2d at 460 (emphasis added).

** NWA “specifically references a colloquy between Secre-

tary of Labor Wirtz and Congressman Martin, an opponent

of all three bills considered in 1965, in which Rep. Martin

expressed concern that an across-the-board extension of the

limitations period to three years would penalize employers

27a

hearings, “the Subcommittee met in executive session and

drafted a new bill that included the [willfulness] language

ultimately enacted.” NWA Brief at 85. NWA then at-

tributes this change to legislators who opposed the exten-

sion of liability in cases not involving conscious disregard

of the law. Id. at 86. To substantiate this new learning

as to the true meaning of the legislative materials, NWA

cites a sentence from the minority statement in the Com-

mittee report on the revised bill, indicating that the Sub-

committee’s discussions had “resulted in the adeption of

several amendments offered by members of the minority.”

{d. (citing H.R. Rep. No. 871, supra, at 74). NWA jumps

from this statement to the conclusion that the willfulness

provision was adopted “in response to the criticism of the

proposal to impose an additional year of liability even on

‘honest’ violators of the [Equal Pay] Act.” NWA Reply

Brief at 42.

NWA’s argument proves no such thing. The single sen-

tence upon which it relies from the minority statement

provides woefully inadequate support for its restrictive

reading of the “willfulness” language. That sentence

stands all by itself in the introduction to the minority

report. Nowhere in this document is there any descrip-

tion of the amendments which the minority proposed,

why it proposed them, what the majority said in response

to the proposals, or why the proposals were adopted by

the full Committee. Moreover, the minority report does

not contain a single word about the “willfulness” provision

in H.R. 10815. This brings us, then, to a broader point

about this provision. The proposed legislation was

who had not deliberately violated the law. Hearings on H.R.

8259 Before the House Ed. and Labor Comm., General Sub-

comm. on Labor, 89th Cong., lst Sess. 54 (1965). NWA also

notes that a number of witnesses in the hearings on H.R. 8259

were of the opinion that the back-pay period “should not be

increased for violations which ‘result from misunderstanding

of the law,’ or ‘honest differences of opinions.’” NWA Brief

at 85, citing id. at 980, 2250 (emphasis added).

28a

lengthy, complex, and dealt with a number of thorny is-

sues, including an increase in the minimum wage and a

significant expansion of the FLSA’s coverage. Adoption

of the “willfulness” language ultimately codified in sec-

tion 255(a) was undoubtedly a matter of limited congres-

sional focus in the 1965 and 1966 deliberations over this

legislation; the paucity of pertinent legislative materials,

therefore, is not surprising.

Given the relative silence of the legislative record in

this respect, Laffey I, 567 F.2d at 460, a silence which

NWA has not persuasively broken with its theory ad-

vanced on this third appeal, we defer to the careful treat-

ment and final settlement of this issue in Laffey I. The

law of the case we honor here rests on the Laffey I court’s

painstaking review of the legislative history, including

Congress’ pivotal concern over small, unsophisticated busi-

nesses—a category that manifestly excludes NWA—which

might not recognize the sweep of the FLSA’s coverage. /d.

at 460-61. Equally important, Laffey I recognized the

need for a liberal construction of remedial statutes, and at

the same time appropriately took into account the absence

of clear congressional intent to impose upon plaintiffs the

heavy burden of demonstrating an employer’s evil intent.

Id. This latter point is especially important in light of the

fact that the Equal Pay Act merely allows a plaintiff to

recover, after an appropriate showing, wages which have

been improperly denied, and does not involve the imposi-

tion of criminal sanctions.

In short, we find nothing compelling, and certainly

nothing demonstrating “clear error” in this court’s earlier

opinion, in the 1965 sources relied upon by NWA. The

careful analysis of the meaning of 29 U.S.C. § 255/a) set

out in Laffey J must stand.

B. Backpay

Moving from the domain of the Equal Pay Act’s legisla-

tive history to an issue under Title VII, the district

Tl

Jere le ST alle SR

ae ee

29a

court’s 1974 Remedial Order awarded each Title VII

plaintiff > backpay in the amount of the full difference

between what she earned as a stewardess and what she

would have earned if she had been paid at the same rate

as a purser of equal seniority. 374 F. Supp. at 1385-86.

On appeal in Laffey I, NWA challenged certain aspects of

these “remedial measures,” 567 F.2d at 437, including

what it saw as the district court’s improper refusal to

adjust the pursers’ rates of pay downward in the amount

of the compensation allegedly based on the “foreign flying”

required of pursers. Of pivotal importance, however,

NWA failed at that time to appeal the underiying deci-

sion to use pursers’ pay rates as the upper end of the

backpay formula.

The court in Laffey I determined that NWA had failed

to show that any portion of the pursers’ pay was attribut-

able to “foreign flying.” 567 F.2d at 452 n.153. See

infra section III. B.2. The Laffey I decision also affirmed

the back-pay formula adopted by the district court. Jd.

at 478.

In 1978, following the remand of these proceedings to

the district court after Laffey I, NWA for the first time

attacked the use of the full purser rates, apart from its

unsuccessful, earlier argument with respect to the alleged

“foreign flying’ component. NWA at this juncture

claimed that the district court should use a hypothetical

wage rate which would have been paid to a single, com-

bined class of “cabin attendants,” rather than purser

rates, in computing backpay. Record Document (“R.’’)

16. The district court, however, refused to entertain

NWA’s argument, on the ground that “the relief requested

is precluded by the Judgment of the Court of Appeals in

*3 It will be recalled that the instant action was brought

both under Title vII and the Equal Pay Act. The back-pay

element of relief was granted by the district court as part of

the remedy to the Title VII class, as well as to the Equal Pay

Act plaintiffs. In this appeal, NWA’s challenge to the com-

putation of backpay is with respect to the Title VII plaintiffs

only.

30a

that it is beyond the Mandate of that Court and seeks to

raise issues not challenged on appeal ... .” Order Deny-

ing Motion to Modify Award of Backpay to the Title VII

Class (D.D.C. July 9, 1979), R. 50.

NWA now seeks to avoid the .aw of the case as to the

computation of backpay by arguing that under the post-

Laffey I decisions of the Supreme Court in International

Brotherhood of Teamsters v. United States, 431 U.S. 324

(1977), City of Los Angeles v. Manhart, 435 U.S. 702

(1978), and Ford Motor Co. v. EEOC, 458 U.S. 219

(1982), the back-pay award here impermissibly overcom-

pensates the Title VII plaintiffs by placing them “in a2

better position than they would have been in if the alleged

discrimination had not occurred.” NWA Brief at 15; see

also id. 48-47. NWA also revives its earlier, unsuccess-

ful argument that the back-pay awards under both Title

VII and the Equal Pay Act are incorrectly inflated by the

court’s failure to exclude from pursers’ pay that portion

attributable to “foreign flying.” NWA once again tries

to characterize “foreign flying” compensation as a “factor

other than sex” for Equal Pay Act purposes, and invokes

the three above-cited High Court decisions in support of

its claim that Title VII damages should be reduced by this

amount.

Because this court affirmed the backpay awards in

Laffey I, and inasmuch as we discern no relevant super-

vening change in the law embodied in the decisions relied

upon by NWA, we decline the invitation to overturn the

law of the case as to the computation of backpay.

1. Wage Rate for Hypothetical Combined Cabin

Attendant Classification

NWA strenuously contends that if it had not maintained

the sex-segregated job classifications of purser and stew-

ardess and had, instead, used only a single “cabin at-

tendant” classification, the wage rate paid to employees in

that hypothetical classification would have closely approxi-

;

¥

d

4

5

3la

mated the rates paid by other airlines with only a single

classification, rather than the “premium pay level” NWA

established for pursers. In support of this proposition,

NWA relies upon an affidavit proffered in 1978. See

Declaration of Terry M. Erskine, Joint Record Excerpts

(“J.R.E.”) 139.

NWA argues that the use of the pursers’ pay rate in

the back-pay formula, rather than the lower rate which

arguably would have been paid to those in the hypothet-

ical, combined cabin attendant classification, violates the

bedrock rule that Title VII backpay may not “catapult

[plaintiffs] into a better position than they would have

enjoyed in the absence of discrimination.” Ford Motor,

supra, 458 U.S. at 234. It also argues that Manhart, in

particular, establishes that the back-pay remedy here was

improper. NWA Brief at 43-44.

We disagree. In the first place, and most critically, we

do not read these three High Court decisions as establish-

ing any pertinent new rule of law as respects this case

under Title VII. The fundamental proposition that the

purpose of Title VII remedies is to “make whole” the vic-

tims of discrimination has been settled for some time, see,

e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 421

(1975), and was clearly recognized by this court in Laf-

fey I. See 567 F.2d at 476 (“The remedial order in this

case is to make employees whole, but not more than

whole.”). Therefore, we perceive nothing new, as respects

NWA’s argument, in these three decisions.

We also find unpersuasive NWA’s assertion that Man-

hart compels the abandonment of the back-pay formula

affirmed in Laffey I. Above all, Manhart arose out of the

extraordinarily sensitive setting of a sex-based contributory

system in a pension plan, circumstances far removed from

the situation here of treating female employees differently

although they performed the same work as male em-

ployees. Second, the only language that provides comfort

32a

to NWA is set forth in a single footnote,** consisting of

guardedly worded dicta. Manhart, in contrast to the case

before us, disallowed any retroactive monetary award, and

in the course of so doing suggested that if such an award

had been appropriate, the lower court “should at least have .

considered” a different formula. The High Court’s under-

standably deep concern for equitable considerations, in-

cluding the grave consequences to pension funds flowing

from a retroactive finding of liability, strongly suggests

that this portion of the Manhart footnote was not ad-

dressed to the matter of remedies in garden-variety Title

VII cases, such as the case at hand.”

‘26 Footnote 36 of the Manhart opinion reads, in relevant

part:

Further doubt about the District Court’s equitable sen-

sitivity to the impact of a refund order is raised by the

court’s decision to award the full difference between the

contributions made by male employees and those made

by female employees. This may give the victims of the

discrimination more than their due. If an undifferentiated

actuarial table had been employed in 1972, the contribu-

tions of women employees would no doubt have been

lower than they were, but they would not have been as

low as the contributions actually made by men in that

period. The District Court should at least have considered

ordering a refund of only the difference between contri-

butions made by women and the contributions they would

have made under an actuarially sound and nondiscrimina-

tory plan.

435 U.S. at 720 n.36.

27 Tt is, as we note in the text avove, clear that Manhart

involved Title VII principies in the extraordinarily sensitive

and complex setting of a contributory pension plan. Concern

for the financial stability of pension plans, upon which em-

ployees ultimately rest their hopes and expectations for

financial security at retirement, was evident throughout the

Court’s opinion. As Justice Stevens, speaking for the Court,

put it: “Nor can we ignore the potential impact which changes

in rules affecting insurance and pension plans may have on the

economy. Fifty million Americans participate in retirement

plans other than Social Security.” 435 U.S. at 721. See also

33a

Moreover, in the absence of supervening, controlling

authority, NWA cannot properly request—for the first

time—that this court mandate the use of “averaging tech-

niques” in the back-pay formula.** As explained supra

at pp. 5-6, the procedural posture of this case at the

time of Laffey I “enabled review on the merits of all

interrelated features of the order save those the District

Court had reserved for future adjudication, Laffey JJ,

642 F.2d at 584 n.49. The issues reserved by the district

court dealt only with the “mechanics of payment” pursu-

ant to the 1974 Remedial Order. See 374 F. Supp. at

1389. The part of the case that the court reserved ob-

viously did not include the back-pay formula itself, which

was clearly set out by the district court, id. at 1385-87

(paragraphs 5-7), and which plainly used the full purser

pay rates as the upper end of the back-pay computation.”

Thus, NWA had the opportunity to appeal any feature of

the back-pay award, including the use of the full purser

rates, in Laffey IJ. Therefore, NWA must be deemed to

have waived any argument available at that time which

it did not assert.

Arizona Governing Committee for Tax Deferred Annuity

and Deferred Compensation Plans v. Norris, U.S. .

, 103 S. Ct. 3492, (1983) (O’Connor, J.) (to avoid

adverse impact on pension funds, decision extending Manhart’s

liability rule should be made prospective).

28 NWA did not have to languish on the legal sidelines await-

ing the 1978 culmination of the Manhart litigation. Manhart

scarcely enunciated for the first time a principle that, save for

its footnote 39, would have theretofore been unsupportable

in Title VII law or theory. As we previously indicated, Man-

hart in this particular respect broke no new legal ground,

but instead observed the possible effects of the well-established

“make whole” principle in the setting of that case.

“2 It further appears from the record that NWA considered

the district court’s 1974 Remedial Order to be a final judgment.

See R. 161 (NWA Notice of Appeal from “[t]he final judg-

ment entered in this action on May 20, 1974... .”), R. 160,

R. 164 (NWA supersedeas bond entered in its appeal from the

May 20, 1974 “final judgment”).

34a

Adherence to the rule that a party waives a “conten-

tion that could have been but was not raised on [a] prior

appeal,” Munoz v. County of Imperial, 667 F.2d 811, 817

(9th Cir.), cert. denied, 459 U.S. 825 (1982), is, of

course, necessary to the orderly conduct of litigation.

Failure to follow this rule would lead to the bizarre

result, as stated admirably by Judge Friendly, “that a

party who has chosen not to argue a point on a first

appeal should stand better as regards the law of the

case than one who had argued and lost.” Fogel v. Chest-

nutt, 668 F.2d 100, 109 (2d Cir. 1981), cert. denied, 459

U.S. 828 (1982). NWA’s failure to challenge the back-

pay formula on its first appeal resulted in the Laffey I

affirmance of that portion of the 1974 Remedial Order,

and the inclusion of the formula in the law of the case.

See Raxton Corp. v. Anania Associates, Inc., 668 F.2d

622, 624 (1st Cir. 1982).

2. Foreign Flying

As previously indicated, NWA reargues its already re-

jected position that purser pay included compensation di-

rectly traceable to “foreign flying’ and that this com-

ponent of compensation should be excluded as a “factor

other than sex” under the Equal Pay Act back-pay compu-

tations, and from the Title VII back-pay computations

under the Supreme Court decisions discussed supra in

section ITI. B.1.

We disagree. We find, for the reasons outlined in the

preceding section, that the Supreme Court decisions in

Manhart, Teamsters, and Ford Motor do not bring into

question the treatment in Laffey / of the “foreign flying”

issue, as those cases merely articulate already established

principles of Title VII law. NWA’s other arguments on

% At most, NWA can argue that Manhart expressly man-

dates “equitable sensitivity” in fashioning back-pay awards.

This principle does not embody some novel and independent

requirement, but rather is aimed at ensuring the fidelity of

BREF RRA ORES RE ONSURRNY « CONRAD ORI? ENR AESUSY RSME INE SNES APP

35a

this issue are foreclosed by the law of the case, clearly

set out in Laffey I, 567 F.2d at 452-53 n.153. Unless

there is supervening authority, and we have concluded

that there is none, NWA must satisfy the stringent test

of “clear error” and “manifest injustice,” a rigorous

standard which has not been met as to the foreign flying

issue. As this court held eight years ago, NWA simply

failed to carry its burden on this issue the first time

around. We refuse to replough this well worn field that

much deserves henceforth to lie fallow.

C. Composition of the Title VII Class

NWA challenges the composition of the Title VII class

on several grounds. It argues that the district court’s

order of December 5, 1980, J.A. 168, improperly added

to the class “hundreds of new employees” who had been

“hired after the cut-off date for the last round of notices”

of the class action. NWA Brief at 55-56. NWA also

appeals from the district court’s order of June 6, 1980,

J.R.E. 162, which included in the Title VII class two

groups of stewardesses which NWA seeks to exclude—

those on leave from their jobs as stewardesses as of the

cut-off date who subsequently deeided not to return to

work, and those who as of the cut-off date had transferred

permanently to non-stewardess jobs at NWA. We con-

sider each of these arguments separately.

1. Stewardesses Not Notified of Class Action

In its February 1971 order, the district court certified

the instant case as a class action under both Fed. R. Civ.

P. 23(b) (2) and 23(b) (3). The court defined the Title

VII class as “all female in-flight cabin attendants cur-

rently employed by [NWA] and/or employed by [NWA]

any time since July 2, 1965.” 321 F. Supp. at 1043.

the lower federal courts in shaping equitable decrees to imple-

ment fully the paramount Title VII “make whole” principle.

EE , a

36a

Thereafter, two rounds of notices were sent to class

members, in 1971 and 1972, pursuant to the requirements

of Fed. R. Civ. P. 23(c) (2).

The district court, in its 1974 Remedial Order, again

defined the term “Title VII plaintiff(s)” to include “all

female cabin attendants employed by [NWA] at any

time on or after July 2, 1965, excluding only those who

filed timely written elections with this Court to be ex-

cluded from this lawsuit in its entirety.” 374 F. Supp. at

1384. In its appeal from this order in Laffey 1, NWA

did not challenge the foregoing definition of the class on

the grounds it now advances. NWA did, however, chal-

lenge the inclusion of stewardesses whose employment

with NWA was terminated prior to the ninetieth day

preceding the first filing with the Equal Employment

Opportunity Commission (“EEOC”). The Laffey I court

agreed, and directed the district court to exclude this

group of ex-employees from the class. See infra section

III. C.2. On remand, the district court corrected its earlier

error (and another, minor mistake as to the actual! date of

the first EEOC filing). it redefined the Title VII class to

include only stewardesses who were employed by NWA

on or after January 29, 1970. Employees terminated

prior to this date were to be included only on a showing

of certain extenuating circumstances. This redefinition

was reflected in the district court’s Order Respecting

Computation of Backpay and Implementation of Final

Judgment, November 30, 1982." Thus, NWA had scruti-

nized the Title VII class definition at the time of Laffey I.

** The 1982 Order defines the Title VII class as “all female

cabin attendants employed by the Company at any time on or

after January 29, 1970 (and certain other female cabin attend-

ants who are to be treated as eligible... by reason of detri-

mental reliance on certain class notices), except for those

female cabin attendants who filed timely written elections .. .

to be excluded....” J.R.E. 202.

—

37a

Seeking to avoid waiver and law of the case obstacles

to appellate review, NWA claims, in effect, that it was

not on notice at the time of Laffey I that the district

court would include in the class stewardesses never fur-

nished the requisite notice or opportunity to opt out

under Rule 23(b) (3). NWA interprets the district court’s

refusal to exclude those stewardesses who had not re

ceived notice of the class action, J.A. 168, as dependent

upon the district court’s view that the parties and the

court had shared, as of the time of the 1971 and 1974

orders, “the intent and understanding” that the definition

of the Title VII class adopted therein was broad enough

to encompass the disputed group of stewardesses. NWA

Brief at 56-07.

NWA argues that there was no such “understanding”

between the parties, and claims that it “proceeded to

trial with the understanding that the backpay class had

heen fixed by the universe of cabin attendants to whom

notice was sent.” NWA Brief at 57. It further argues

that the December 1980 order was improper, inasmuch

as Rule 23/c)(1) permits a court to “alter” a class

certification only prior to the decision on the merits.

NWA perceives here the evil of “one-way intervention.”

Appellees, on the other hand, heatedly dispute NWA’s

claim as to the original “understanding” that the Title

VII class did not include the disputed group of steward-

esses. Appellees cite to substantial portions of the record

as support for the true “understanding” of an open-

ended class.“ Under appellees’ theory, NWA had full

knowledge of the manner in which the class definition

would be applied and thus waived the arguments now

advanced here because it did hot assert those contentions

in the proceedings leading up to the 1974 Remedial Order

™ Appellees’ Reply Brief at 60.62 (discussing appellees’ ar-

gument to district court regarding the December 1980 order,

R. 31 at 5-12).

we : 38a

or in its appeal to this cffirt in Laffey I. Appellees fur-

ther argue that Laffey I established the open-ended class

definition as the law of the case, which, as an additional

ground, bars NWA from now attacking inclusion of the

disputed group of stewardesses.

Without deciding whether the parties had the disputed

“understanding” as to the meaning of the 1971 definition

of the Title VII class, we conclude that NWA’s attack on

the 1980 order ‘and definition) is barred by the doctrines

of waiver and law of the case. We reach this conclusion

in light of the fact that the 1974 Remedial Order, issued

long after the 1972 cut-off date now urged by NWA, con-

tained essentially the same open-ended class definition as

the 1971 certification order. NWA knew, or should have

known, that the express terms of the 1974 order—sweep-

ing into the class “all female cabin attendants employed

by [NWA] at any time on or after July 2, 1965” (em-

phasis added)—could manifestly be read as extending

beyond 1972. It was up to NWA to test the meaning of

the 1974 order as to stewardesses who had not received

notice of the class action, if it so desired, in iis appeal

from that order—the appeal which culminated in Laffey

I. NWA failed to do so. NWA, albeit represented now

by different counsel, must be held to have waived the

opportunity to raise this issue. For the reasons stated

supra at pp. 33-34, we must recognize the law of the case

established in Laffey I.

In addition, we note that NWA’s argument regarding

the impropriety of “one-way intervention” has been re-

jected by other courts which have held that “classwide

backpay under Title VII can be awarded in a [Rule 23]

(b) (2) class action.” This development in Title VII

* Appellees’ Reply Brief at 63-64 (citing, inter alia, Parton

v. Union National Bank, 688 F.2d 552, 563 (8th Cir. 1982),

cert. denied, —— U.S. ——, 103 S. Ct. 1772 (1983): Aler-

ander v. Aero Lodge No. 735, Intern. Ass'n, 565 F 2d 1364,

1372 (6th Cir. 1977), cert. denied, 436 U.S. 946 (1978);

a

TT

39a

law, signalled by the Fourth Circuit’s 1971 decision in

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.),

cert. dismissed, 404 U.S. 1006 (1971), was well under

way as of NWA’s appeal in Laffey J. Had NWA wished

to clarify the definition of the Title VII class in relation

to this expansion of (b)(2) actions, it clearly had the

opportunity to raise the issue in Laffey I.*

2. Former Stewardesses

In Laffey I, NWA argued that the district court erred,

in its 1974 Remedial Order, “in granting relief pursuant

to Title VII in the form of backpay to stewardesses whose

employment with [NWA] [had] terminated more than

ninety days prior to the first filing by an employee of [a]

. . . charge with the Equal Employment Opportunity

Commission.” 567 F.2d at 472. NWA’s argument was

based upon the settled rule that “only those employees

who could have filed charges with the Commission indi-

vidually when the class filing was made are properly

members of the... class.” Jd. NWA reasoned that the

discrimination in this case “could not be deemed continu-

ing as to those who left [NWA’s] employ more than

ninety days prior to the class filing with the [EEOC],”

id. at 473, and that, as a result, those employees were not

entitled to recover as members of the Title VII class.

The Laffey I court agreed with NWA’s contention in

this respect:

A severing of the employment relationship ordi-

narily terminates a discrimination against the sev-

ered employee, and activates the time period fov

filing charges with the Commission concerning any

Robinson v. Lorillard Corp., 444 F.2d 791, 801-02 (4th Cir.),

cert. dismissed, 404 U.S. 1006 (1971).

* In light of our conclusion in this respect, we do not have

to reach, nor do we, the specific question addressed in decisions

from other Courts of Appeals, such as Lorillard.

40a

violation which occurred at separation or which may

have been continuing up to the date thereof. To hold

otherwise would effectively read the timely-filing re-

quirement out of the statute.

Id. (citations omitted). Accordingly, the Laffey I opin-

ion directed the district court, on remand, to “exclude

from the Title VII recovery those employees whose con-

nection with NWA was dissolved more than ninety days

before the class filing with the [EEOC],” while retain-

ing those terminated stewardesses “who would have

brought themselves within the Equal Pay Act class... .”

Id. at 476.

After remand, NWA then sought the exclusion of two

additional groups of ex-stewardesses: those on leaves of

absence on the 90th day prior to the filing of the first

EEOC charge and who, subsequent to that date, left the

employ of NWA without having returned to work as

stewardesses; and those who were employed by NWA at

least until the 90th day prior to the first EEOC filing,

but who had transferred to non-stewardess positions. The

district court denied NWA’s requested exclusions in an

order dated June 6, 1980. J.R.E. 162. This denial was

based on the district court’s understanding that Laffey I

had resolved this issue. See District Court’s Order of

February 19, 1981, denying reconsideration of its June 6,

1980 order. J.A. 172, 173.

NWA challenges the June 6, 1980 order, arguing that

the district court misunderstood Laffey I. Downplaying

the fact that Laffey I dealt explicity only with terminated

stewardesses, NWA claims that a truer indication of

that court’s mandate was its recognition that “only those

employees who could have filed charges with the Commis-

sion individually when the class filing was made are

properly members of the litigating class.” 567 F.2d at

472. This language, NWA argues, empowered the district

court to consider its claims that certain stewardesses,

other than those in the terminated group expressly dealt

— Te

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4la

with in Laffey I, had no viable claims allowing their in-

clusion in the class. NWA traces the district court’s

failure to so interpret the mandate of Laffey I to its

overly “wooden reliance” on the “phrase ‘left the Com-

pany’s employ... .’” NWA Brief at 61.

Without reaching the merits of NWA’s arguments

against inclusion of the two disputed groups of stew-

ardesses, we hold that the district court correctly con-

strued the Laffey I mandate. NWA had the opportunity

in Laffey I to raise the issue of the status of these tWo

additional groups of class members, just as it had the

opportunity to raise the issue of the terminated stew-

ardesses. NWA simply and indisputably failed to do so.

Its failure to raise these arguments constituted a waiver

of them. See supra at pp. 33-34. Moreover, as to the law

of the case, in Laffey I the court “affirm[ed],” 567 F.2d at

478, the award of backpay to all class members except

those “whose connection with [NWA] was dissolved more

than 90 days before the class filing with the Commission.”

Id. at 476 (emphasis added). NWA’s attack on the dis-

trict court’s December 1980 ruling is thus barred by the

principles of waiver and law of the case.

IV. THE LIMITATION PERIOD ON TITLE VII BACKPAY

In the 1972 amendments to Title VII, Congress limited

back-pay liability to no more than two years prior to the

filing of charges with the Equal Employment Opportunity

Commission. Laffey I held that the 1972 amendments did

not apply to this case and directed the district court on

remand to “determine the local statute of limitations most

appropriate to this case,” 567 F.2d at 469. On remand,

the district court referred to District of Columbia law,

noted that the District has no borrowing statute and gen-

erally applies its own statute of limitations as a “pro-

cedural” prescription, and determined that the most rele-

vant statutes are the D.C. Minimum Wage Law, D.C.

Code Ann. § 36-416 (1973) (now codified at D.C. Code

42a

Ann. § 36-216 (1981) ), and the general statute of limita-

tions, D.C. Code Ann. § 12-301 (1981). See Laffey v.

Northwest Airlines, Inc., 481 F. Supp. 199, 200-01

(D.D.C. 1979). Both of these laws provide for a three-

year limitations period.

Were we writing on a clean slate, we might well de-

cide that the two-year rule specified in the 1972 Title VII

amendments should apply, if not directly, then at least by

analogy, as the best indicator of the federal legislators’

view of the appropriate back-pay liability limitation

period. We are reluctant, however, to depart from the

law of the case on the nonretroactivity of Title VII’s cur-

rent two-year limitation. Nevertheless, we modify the

district court’s decision specifying a three-year period

borrowed from the District of Columbia’s minimum wage

law or general statute of limitations. In the unique cir-

cumstances presented here, we hold that the time frame

most appropriately borrowed is Minnesota’s two-year

limitation on “the recovery of wages ... under any

federal or state law.” Minn. Stat. Ann. § 541.07(5)

(West Supp. 1982-1983).

Absent a federal limitation period which we can apply,

we generally borrow the limitation period of the state in

which the federal trial court sits. If a traditional statute

of limitations were needed here, we would be required to

employ a District of Columbia statute of limitations. See

Ernst & Ernst v. Hochfelder, 425 U.S. 185, 210 n.29

(1976) ; Forrestal Village, Inc. v. Graham, 551 F.2d 411,

413 (D.C. Cir. 1977). However, what is at issue is not

a statute of limitations in the usual sense but rather a

substantive cap on the amount of backpay that may be

awarded.

Having refused to apply the federal two-year limit,

Laffey I stated:

[T]he problem at this point is simply that of

fashioning a federal common law period of limita-

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tions. Most often this is effected by adopting the

period prescribed by the most analogous state stat-

ute... . [A]doption of the state limitation period is

proscribed only when it would create important con-

flicts with the federal policy underlying the cause of

action or when it would amount to a discriminatory

restriction of a federal right of action. Neither of

those conditions exists here.

567 F.2d at 468-69 (footnotes omitted). The current

two-year federal statutory cap on recovery, 42 U.S.C.

§ 2000e-5(g), for which Laffey I wished to find a “fed-

eral common law” substitute, is not addressed, as a stat-

ute of limitations would be, to the timeliness of the filing

of charges or the institution of a lawsuit. Timeliness of

filing with the Commission is governed by section 2000e-

5(e) and thet of the institution of a lawsuit by section

2000e-5(f) (1). But when those provisions are satisfied

by timely filings, and when a plaintiff has made his sub-

stantive case, section 2000e-5(g) comes into play for the

first time to define the maximum remedy. As the court

stated in Miller v. Miami Prefabricators, Inc., 438 F.

Supp. 176, 181 (S.D. Fla. 1977) :

When measured against the broad “make whole”

purposes of Title VII it becomes evident that the

two year cap on back pay contained in 42 U.S.C.

§ 2000e-5(g) is not a statute of limitations. Rather,

that provision was inserted by Congress in an at-

tempt to limit the back pay which could be recov-

ered from employers who have been engaged in dis-

crimination for many years.

As a limit on liability rather than a statute of limita-

tions, section 2000e-5(/g) is a substantive rather than a

procedural measure. Where there is no similar back-pay

cap in state law, a state statute of limitations will be used

for federal purposes, here a substantive purpose Where

the issue is substantive, the District of Columbia does not

automatically apply its own prescription. See In re Air

Crash Disaster at Washington, D.C., 559 F. Supp. 333,

44a

341-42 (D.D.C. 1983) ; Williams v. Williams, 390 A.2d 4,

5 (D.C. 1978). )

In this case, we have been pointed to no jurisdictions

other than Minnesota and the District of Columbia that

have a relevant connection to the parties and actions in-

volved in this litigation.* The District of Columbia is

obviously a jurisdiction whose laws should be examined.

But of the two conceivably applicable D.C. statutes, neither

manifests a policy closely analogous to the one at stake

here. The Minimum Wage Law, D.C. Code Ann. §36-

203, on which the district court relied, is not designed to

prevent sex discrimination but rather to establish mini-

mum hourly wages, maximum hours, and overtime com-

pensation rates. That statute’s three-year limit on mini-

mum wage claims, D.C. Code Ann. $36-216, seeks merely to

prevent the prosecution of stale claims—a policy not im-

plicated here. Likewise, the D.C. three-year “catch-all”

statute of limitations, D.C. Code Ann. § 12-301, on which

the district court also relied, serves to limit the bringing

of stale claims and evinces no particular interest in pre-

venting sex discrimination.

Minnesota law is more to the point and there is no

doubt that the parties and actions at issue touch and

concern that state. Appellant is a Minnesota corporation;

appellant’s headquarters are in Minnesota; the wage

scales challenged in this case were all set by collective

35 Appellees contend that neither state has a governmental

interest or statutory policy that is relevant because this is a

federal claim that no state has any legitimate interest in regu-

lating substantively. But at the time of Laffey ] there was a

federal limit on liability and this court, though it found the

federal limit itself inapplicable, did not decide that backpay

should be awarded back to the effective date of Title VII, as

appellees here then contended. Instead, Laffey J found that

federal policy required that a relevant state limitation should

be found. The state does not regulate the federa! claims; the

federal common law does, and it does so by constituting itself

from analogous state law.

45a

bargaining agreements negotiated and signed in Minne-

sota; the employment relationship of every member of the

appellee class was established in Minnesota and was con-

trolled by decisions taken there; all interviews and hiring

occurred in Minnesota; the employment contract of each

appellee class member stated that it was to be “viewed

as a Minnesota contract of employment governed by the

laws of that state in every respect”; and, when this case

was certified as a class action, notice was directed to

2,634 stewardesses, of whom only ten lived in the District

of Columbia while 1,694 lived in Minnesota. See Declara-

tion of James A. Abbott, R. 61 at 17 2-4.

In contrast to the District of Columbia, Minnesota does

have a statute closely analogous to Title VII, 1.¢., the

Minnesota Human Rights Act, Minn. Stat. Ann. § 363101

(West 1983). Like Title VII, the Minnesota Human

Rights Act extends its protection beyond sex-based classes

to other groups and prohibits discrimination in aspects of

employment besides compensation. The Minnesota Equal

Pay Act that appellant would have us adopt merely pro-

hibits wage differentials and protects only sex-based

groups. Minn. Stat. Ann. § 187.67 (West 1983). Sig-

nificantly, the Minnesota Supreme Court, in discussing

the Minnesota Human Rights Act, has applied case law

interpreting Title VII. See Brotherhood of Railway &

Steamship Clerks v. State, 303 Minn. 178, 188-91, 229

N.W.2d 3, 9-11 (1975).

The Minnesota Supreme Court has decided that Minn.

Stat. Ann. $ 541.07(5) (West Supp. 1982-1983) is the

statute of limitations that should govern claims of dis-

crimination brought under the Human Rights Act. See

Brotherhood of Railway & Steamship Clerks, 303 Minn.

at 195-96, 229 N.W.2d at 13-14. Section 541.07(5) pre-

scribes a two-year limitations period “for the recovery of

wases or overtime or damages, fees or penalties accruing

under any federal or state law respecting the payment of

wages or overtime or damages, fees or penalties... .”

46a

We find that the limitations period for recovery of back-

pay should be established by recourse to that statute.

Accordingly, the recovery period is two years.

V. THE LIQUIDATED DAMAGES AWARD

The district court’s 1974 Remedial Order, 374 F.Supp.

at 1390, disallowed liquidated damages under the Equal

Pay Act. On appeal in Laffey I, we “remand[ed] the

matter of liquidated damages in toto for reconsideration

by the District Court.” 567 F.2d at 466 n.279. With our

Laffey I instructions as its guide, the district court per-

mitted further discovery and ultimately found that the

relevant facts mandated a liquidated damages award.

Laffey v. Northwest Airlines, Inc., 24 Empl. Prac. Dec.

(CCH) 931,384 (D.D.C. Nov. 21, 1980) [hereafter, Nov.

21, 1980, Decision]. NWA contends that the district

court erred in finding liquidated damages mandatory and

in calculating the amount of the award. We reject both

contentions as insubstantial and sustain the district

court’s liquidated damages adjudication in all respects.

A. Plaintiff’s Entitlement to Liquidated Damages

As Laffey I recounted, 567 F.2d at 463-65, the Fair

Labor Standards Act, which serves as the procedural and

remedial framework for Equal Pay Act claims, initially

provided that prevailing employees were entitled to an

automatic award of liquidated damages in an amount

equal to unpaid wages. Congress amended the statute in

1947 ** to commit to judicial discretion disallowance or

limitation of liquidated damages if the employer satisfies

the court that he acted “in good faith” and with “reason-

able grounds for believing that his act or omission was

[lawful].” 29 U.S.C. $260 (1982). Both prior to and

after this amendment, courts have described liquidated

36 See Laffey I, 567 F.2d at 463-65 & n.25 (quoting and dis-

cussing section 11 of the Portal to Portal Act of 1947, 29

U.S.C. § 260 (1982) ).

47a

damages as serving a compensatory, not a penal, purpose.

See, e.g., Brooklyn Savings Bank v. O’Neil, 324 U.S. 697,

707 (1945); Thompson v. Sawyer, 678 F.2d 257, 281

(D.C. Cir. 1982); Marshall v. Brunner, 668 F.2d 748,

753 (3g Cir. 1982); Usery v. Chef Italia, 540 F.Supp.

587, 35 n.9 (E.D. Pa. 1982).

Initially, the district court concluded that NWA had

acted “in good faith”: NWA committed a “willful” vio-

lation of the Equal Pay Act, the court explained, because

it “was fully aware of [the Act] and adopted a deliberate

and knowing course of conduct despite its awareness”;

but the evidence did not indicate “an intentional, bad

faith, attempt [by NWA] to evade the law.” 1974 Re-

medial Order, 374 F.Supp. at 1390.%7 For several reasons,

the district court, on first examination, also found it “not

unreasonable” for NWA to believe that its purser/

stewardess pay differential was lawful. /d.

On review, we held “the reasons given by the District

Court for disallowing liquidated damages .. . legal [ly]

inadequa[te].” Laffey I, 567 F.2d at 465. “The good

faith of which the Act speaks,” we restated, “is ‘an

honest intention to ascertain what the. . . Act requires

and to act in accordance with it.’” Jd. at 464 (quoting

Addison v. Huron Stevedoring Corp., 204 F.2d 88, 93 (2d

Cir.), cert. denied, 346 U.S. 877 (1953)). “Good faith”

must be established affirmatively, we observed; it is not

enough that “it appear that the employer probably did

\ not act in bad faith.” Laffey I at 465.

Four of the five reasons supplied by the district court

for finding NWA reasonably believed it complied with the

sss oes schanirlihaelly soiniiieatisih

spin thi Ra ISOM er ee hia PREETI A

37 See also Appellant’s [NWA] Combined Reply Brief and

Brief on Cross-Appeal at 58-59, Laffey J (arguing that to re

: but NWA’s proof in support of its alleged good faith, plaintiffs

j had to point to “direct evidence of bad faith or deliberate

‘ [Equal Pay Act] wrong, or that sex was consciously the rate

basis, or that employer was trying to evade the [Equal Pay

Act]’’). ie

48a

law related to then traditional industry practice and em-

ployee acquiescence.** We stated: “That an employer and

others in the industry have broken the law for a long

time without complaints from employees is plainly not

the reasonable ground to which the statute speaks.” Id.

(footnote omitted). Further, we remarked that “the

prevalence of sex-discrimination litigation against the

airline industry naturally prompts the question whether

NWA should reasonably have known that neither its own

tradition, the industry custom nor the employees’ silence

was a reliable indicium of the demands of the law.” Jd.

(footnotes omitted) .*

In Laffey I, we recognized that “[a]ny assessment ot

an employer’s gc «' aith or grounds for his belief in the

legal propriety of his conduct is necessarily a finding of

fact, to be disturbed on appeal only if clearly erroneous.”

567 F.2d at 464 (footnote omitted). We found, however,

38 The fifth factor cited by the district court was “the ab-

sence of any clear legal precedent or cuideline precisely in

point.” 1974 Remedial Order, 374 F.Supp. at 1390. We recog-

nized that this factor was indeed relevant to a determination

whether an employer had a good faith, reasonably grounded

(but erroneous) belief that his conduct was lawful. But

“legal uncertainty,” we added, “to assist the employer’s defense,

must pervade and markedly influence the employer’s belief;

merely that the law is uncertain does not suffice.” Laffey J,

567 F.2d at 466. We indicated that on remand it would be

appropriate for the district court to consider whether ‘the

absence of precise legal guidelines” was in fact the “condition

[that] actually led NWA to believe that it was in compliance

with the Equal Pay Act.” Jd. The district court did so and

concluded: “{[NWA] was in the position to study and know

the nature of the work being performed by its employees.

For it to erroneously conclude that the jobs were different was

not a consequence of legal uncertainty.” Nov. 21, 1980, Deci-

sion, 24 Empl. Prac. Dec. at 18,286 (emphasis in original).

3% Cf. Laffey I, 567 F.2d at 466 n.276 (citing Albermarle

Paper Co. v. Moody, 422 U.S. 405, 422 (1975) (Title VII deci-

sion) for proposition that maintenance of practice of “highly

questionable legality” constitutes bad faith).

ee en -

49a

that the district court had erroneously declared and ap-

plied the governing law: it had misperceived the mean-

ing of both “good faith” (by apparently accepting the

absence of bad faith as sufficient) and “reasonable

grounds” (by considering several factors irrelevant to

that determination). The “clearly erroneous” rule, see

Fep R. Crv. P. 52(a), therefore did not stand in the way

of a remand.

On this appeal, by contrast, we find no legal infirmity

in the district court’s assessment. Instead, we are satis-

fied that the district court closely followed the guidance

supplied in Laffey I, ‘which constitutes the law of the case

and of this circuit. Approaching the district court’s fact

findings with appropriate regard to that tribunal’s func-

tion and to the need for finality served by Feb. R. Crv. P.

52(a), we have no occasion to disturb the liquidated

damages award.

We summarize here the principal points made by the

district court, with ample record support, in explanation

of its ultimate finding that NWA did not have “a reason-

able foundation for a positive belief that in fact its poli-

cies compi[ied] with the law.” Nov. 21, 1980, Decision,

24 Empl. Prac. Dec. at 18,286 (emphasis in original).

First, NWA officials concluded that the jobs of purser

and stewardess were in fact different “without consult-

ing the in-flight supervisors responsible for knowing the

duties of each, without commissioning a study of the jobs

(as they did nine years later), and without scrutinizing

the jobs for differences in duties.” Jd. Next, NWA’s

* NWA refers to its “thorough” internal review of the pos-

sible application of the Equal Pay Act to the Company’s per-

sonnel practices as indicative of its “good faith” and “reason-

able grounds.” See NWA Brief at 72; see also Nov. 21, 1980,

Decision, 24 Empl. Prac. Dec. at 18,285-86 (summarizing

NWA’s contentions). This review consisted of conversations

shortly after the Act’s passage among Robert Ebert, Vice

President for Personnel, James Abbott, Labor Relations Coun-

sel (Personnel Department), and Homer Kinney, Director of

50a

alleged belief that “wages established through collective

bargaining” were invulnerable to Equal Pay Act chal-

lenge, despite the language of the Act and the Wage-Hour

Administrator's published interpretation,*' could not rest

on “an honest intention to ascertain what the Act re-

quired.” Id.

Labor Relations (Personnel Department). See 12/20/78 Depec-

sition of Homer R. Kinney at 4-7, reprinted in Supplemental

Record Excerpts (S.R.E.), Vol. I; 12/19/78 Deposition of

James A. Abbott at 56, reprinted in S.R.E., Vol. I. No partici-

pant asserted that he in fact recalled discussing the differences

in duties between pursers and stewardesses. See 12/20/78

Deposition of Homer R. Kinney at 4-7, 42-43; 12/19/78 Depo-

sition of James A. Abbott at 56-57, 62-63, 66-67. Nor does it

appear that the officials in question were best-positioned to

conduct a close review of the work of pursers and steward-

esses. See Laffey I Joint Appendix at 723-24, 734-36 (trial

testimony of Chester L. Stewart) (chain of direct supervision

of pursers and stewardesses ran through Department of

Transportation Services, not Personnel Department) ; id. at

897 (trial testimony of Robert Ebert) (he had only general,

not detailed knowledge of purser and stewardess duties).

*1 The district court quoted and added emphasis to the

United States Department of Labor, Wage-Hour Administra-

tor, Interpretive Bulletin on Equal Pay for Equal Work

§ 800.106 (Apr. 25, 1964), which states:

[W]here equal work is being performed within the mean-

ing of the statute, a wage rate differential which exists

between male and female employees cannot be justified on

the ground that it is a result of negotiation by the union

with the employer, for negotiation of such a discrimina-

tory wage differential is prohibited under the terms of

the equal pay amendment.

Reprinted in 29 C.F.R. § 800.106 (1983). The district court

appropriately rejected NWA’s various attempts to cloud this

clear statement. See Nov. 21, 1980, Decision, 24 Empl. Prac.

Dec. ai 18,286 (citing Clifton D. Mayhew, Inc. v. Wirtz, 413

F.2d 658, 6623 (4th Cir. 1969)) (“If [employer] did not know,

it was because ‘1e did not look, or looking, did not see, or want

to see what waz so plainly there.”).

i. -

5la

Additionally, NWA could not establish its “good faith”

by reason of its termination of “other discriminatory

personnel practices—after considerable delay and an

EEOC finding of probable violations.” Jd. (emphasis in

original). Further, NWA gained no mileage from its

“purported reliance on an EEOC statement that the

duties of the purser and stewardess were different,” for

the vaunted EEOC statement “merely recited [NWA’s]

own job descriptions.” Jd. at 18,287. Finally, NWA’s

actions “after the lawsuit was filed... . fail[ed] to satisfy

its burden of showing an honest intention to comply

(with the law] prior to commencement of litigation.” Jd.

(emphasis in original) .*

In Laffey I, we cautioned the district court that the

employer bore a “ ‘substantial burden’ of proving that

his failure to comply was in good faith and also was

predicated on reasonable grounds for a belief that he was

in compliance.” 567 F.2d 464-65 (quoting in part Roth-

man v. Publicker Indus., Inc., 201 F.2d 618, 620 (3d

Cir. 1953)) (footnote omitted). “If the employer cannot

convince the court in these respects,” we emphasized, “an

award of liquidated damages remains mandatory.” Id.

at 465 (footnote omitted). The district court, for solid,

plainly stated reasons, was unconvinced that NWA acted

with the requisite “good faith” and “reasonable grounds.” *

*2 Nor, in light of the record as a whole, did NWA’s conduct

after the commencement of litigation impel any finding that

“good faith” and “reasonable grounds” supported NW4A’s

1970-1976 retention of the sex-based pay differential. See

infra pp. 52-53 (differential maintained for two years follow-

ing district court declaration that it violated the Equal Pay

Act).

*3 We have described the “good faith” inquiry—did the em-

ployer honestly intend to ascertain and act in accordance with

Equal Pay Act requirements—as “subjective,” and the “rea-

sonable grounds” inquiry as “objective.” Laffey I, 567 F.2d at

464. If theoretically discrete, the two inquiries are not so

readily compartmentalized in practical application. Inquiry

into the subjective state of mind of the employer, if we at-

52a

We uphold that determination as free from any clear

error.

B. The Liquidated Damages Calculation

NWA next argues that, even if the district court prop-

erly determined that the statute entitled the Equal Pay

Act plaintiffs to liquidated damages, the years 1974 and

1975 should have been left out of the calculation. These

are the relevant facts. NWA/’s contract with the cabin

attendants’ union expired at the end of 1973. Negotia-

tions for a new contract took place in 1974 and 1975.

During that two-year interval, pursers and stewardesses

were paid under the terms of the expired contract, which

accorded higher pay to pursers. The new contract, signed

December 20, 1975, equalized purser and stewardess wage

rates“ and provided for a retroactive adjustment cover-

ing the negotiation period.

Thus, in early 1976, the stewardesses received “retro-

pay” for the difference between wages paid pursers and

tribute rationality to that employer, is likely to be influenced

by the fact trier’s perception whether a reasonable person,

diligently seeking to conform his or her conduct to legal

requirements, might have acted as the employer in fact did.

NWA now argues for rigid separation of “good faith” from

“reasonable grounds” and incorrectly reads our Laffey I opin-

ion to leave untouched the district court’s original finding of

good faith. See NWA Brief at 20, 72 n.*. We note, however,

that NWA itself has exhibited less than perfect consistency in

deciding whether to characterize a factor as relevant to “good

faith” or to “reasonable grounds.” Compare Appellant’s

[NWA] Combined Reply Brief and Brief on Cross-Appeal at

54-55, Laffey I (arguing that collective bargaining history and

stewardess acquiescence demonstrated NWA acted in goud

faith), with NWA Brief at 72 n.* (arguing that, when Laffey

I rejected these factors, the court addressed only “reasonable-

ness,” not “good faith’’).

“ This contract, effective January 31, 1976, and applicable

to the years 1974-1977, merged all cabin attendants into a

single classification. See NWA Brief at 11 n.*.

j

53a

stewardesses in 1974 and 1975. The parties agreed on

subtraction of this retro-pay from NWA’s basic backpay

liability. NWA unsuccessfully sought credit for the retro-

pay against liquidated damages as well, and now chal-

lenges the district court’s refusal to subtract the retro-

pay from the liquidated damages award. See Laffey v.

Northwest Airlines, Inc., No. 2111-70, slip op. at 1, 4-10

(D.D.C. Oct. 25, 1982) [hereafter, Oct. 25, 1982, Mem.

Op.|, reprinted in J.R.E. 180, 183-89.

In opposing credit for the retro-pay against liquidated

damages, plaintiffs relied on the district court’s November

1973 Findings, 366 F.Supp. at 789, holding that the

purser/stewardess pay differential violated the Equal Pay

Act.” Retroactive adjustment over two years later, plain-

tiffs argued and the district court agreed, did not relieve

NWA of its liquidated damages liability for the years

1974 and 1975, a period during which pursers received,

but stewardesses continued to await, the higher pay.

NWA, on the other hand, maintained that the retro-pay

stewardesses received in 1976 should be treated for all

Equal Pay Act remedial purposes as if it had been paid

in 1974 and 1975. NWA characterized payments under

1973 contract as merely “on account”; lump-sum adjust-

ments retroactively establishing actual wage rates for

past years, NWA stressed, were a “standard feature of

labor agreements in the airline industry.” See Oct. 25,

1982, Mem. Op. at 6. reprinted in J.R.E. 185 (quoting

NWA); NWA Brief at 22, 82.

We conclude that the district court appropriately re-

fused to “relate back” the retro-pay, and thereby exclude

1974 and 1975 from the liquidated damages calculation.

The wages involved in fact were not received until two

*6 The district court’s April 1974 Remedial Order, 374

F.Supp. at 1385, provided that backpay would continue to

accrue until NWA equalized purser and stewardess wages.

This Order was stayed pending NWA’s appeal, petition for

rehearing, and petition for certiorari. See supra p. 4.

54a

years after they were earned. That reality, in the cir-

cumstances here presented, is dispositive of plaintiffs’

statutory entitlement to liquidated damages.

In rejecting NWA’s “relate back” argument, the dis-

trict court stressed this central consideration: “liquidated

damages are not punitive”; they are intended to compen-

sate employees for a payment delay “which might result

in damages too obscure and difficult of proof” to be re-

dressed by any other means. Oct. 25, 1982, Mem. Op.

at 6-7, reprinted in J.R.E. 185-86 (quoting language

appearing in Overnight Motor Transportation Co. v.

Missel, 316 U.S. 572, 583-84 (1942)); see cases cited

supra p. 47. As its principal ground of objection to

the district court’s ruling,** NWA asserts that section six

of the Railway Labor Act, 45 U.S.C. $156 (1982), obli-

gated it to maintain the status quo as to all conditions

of employment, including wages, during the two-year

‘6 The district court correctly observed, see Oct. 25, 1982,

Mem. Op. at 6-7, reprinted in J.R.E. 185-86, that the right to

liquidated damages is nonwaivable by employees, see Schulte

v. Gangi, 328 U.S. 108, 114 (1946); Brooklyn Sav. Bank

v. ONeil, 324 U.S. 697, 704 (1945), and that a union, in

collective bargaining, cannot surrender rights secured by the

Equal Pay Act. See 29 U.S.C. § 206(d) (2) (1982); EEOC

v. AT&T Co., 365 F.Supp. 1105, 1128 (E.D. Pa. 1973), aff’d

in relevant part, 506 F.2d 735 (3d Cir. 1974) (without discus-

sion of this point). Thus airline industry collective bargain-

ing patterns, see supra p. 58, provide no insulation to NWA

against the full measure of recovery Congress specified for

Equal Pay Act violations.

We further note our agreement with the district court’s

remarks on a Fair Labor Standards Act regulation cited by

NWA, 29 C.F.R. § 778.303 (1983) (employer who grants

retroactive pay increase must also increase overtime pay

retroactively). This regulation serves to insure employees’

receipt of overtime compensation on retroactive pay increases ;

it is not addressed to situations involving an “underlying un-

lawful differential in wages” or any other delinquency in meet-

ing statutory obligations. See Oct. 25, 1982, Mem. Op. at 8-9,

reprinted in J.R.E. 187-88.

55a

pendency of contract negotiations.“7 That Act, we are

confident, does not stop an employer from immediately

equalizing wages upward in accordance with a judicial

determination that an existing wage disparity violates

the Equal Pay Act.*®

The Railway Labor Act provision NWA cites fosters

bargaining over disputes to avert the disruption of com-

merce strikes and lockouts occasion. See, e.g., Detroit &

Toledo Shore Line Railroad Co. v. United Transportation

Union, 396 U.S. 142, 148-50 (1969). But the Equal Pay

Act requires equalizing the wages of the lower paid sex

up to the level of the higher paid sex. See, e.g., Corning

Glass Works v. Brennan, 417 U.S. 188, 206-07 (1974).

A court determination of an Equal Pay Act violation

leaves nothing for the employer and union to bargain

**7 The provision on which NWA relies states that “[fi]n

every case where [the negotiation procedures of the Act have

come into play], rates of pay, rules, or working conditions

shall not be altered by the carrier [until the Act’s negotiation

procedures have run their course].” 45 U.S.C. § 156 (1982).

*8 We note in this context the specific command directed to

unions in the Equal Pay Act:

No labor organization, or its agents, representing em-

ployees of an employer having employees subject to any

provisions of this section shall cause or attempt to cause

such an employer to discriminate against an employee in

violation of [the Eaual Pay Act].

22 U.S.C. § 206(d) (2) (1982). See also, e.g., Boys Markets,

Ine. v. Retail Clerks Union Local 770, 398 U.S. 235, 249-53

(1979) (to advance objectives of other legislation, court may

sanction exception to Norris LaGuardia Act that does not

undermine that Act’s purposes); Brotherhood of Railroad

Trainmen v. Chicago River & Indiana R.R., 353 U.S. 30, 39-42

(1957) (same) ; Brotherhood of Railway, Airline & Steamship

lerks v. REA Express, Inc., 523 F.2d 164, 168-69 (2d Cir.

1975) (Railway Labor Act’s unilateral wage change prohibi-

tion does not block trustee’s unilateral change made to keep

bankrupt operating), cert. denied, 423 U.S. 1017 (1975), 423

U.S. 1073 (1976).

56a

about. Just as the National Labor Relations Act’s prohi-

bition against an employer’s unilateral change in wages

under negotiation *® gives way to commands for an em-

ployer’s compliance with other laws, so the analogous

provision of the Railway Labor Act erects no obstacle, on

the facts here presented, to an employer’s immediate pay-

ment of equal wages to men and women performing equal

work.

Stewardesses did not receive until 1976 pay made to

pursers in 1974 and 1975; NWA must now compensate

for the withholding period, during which it remained out

of compliance with the Equal Pay Act, by paying the

liquidated damages ordered by the district court.

VI. ISSUES RAISED BY LAFFEY AS CROSS-APPELLANT

A. Pre-Act Longevity

In calculating the amount of backpay due for NWA’s

post-Act wage violations, the district court held that the

women should receive credit only for stewardess service

performed subsequent to the Act under which they were

recovering. The district court reasoned that the Supreme

Court’s decisions in United Air Lines, Inc. v. Evans, 431

U.S. 553 (1977), and International Brotherhood of Team-

49 See, e.g., NLRB v. Katz, 369 U.S. 736, 743, 745-47 (1962)

(employer’s unilateral change in wages under negotiation vio-

lates § 8(a) (5) of the National Laber Relations Act).

50 See Standard Candy Co., 147 NLRB 1070, 1073 (1964)

(ALJ opinion adopted by Board) (unilateral change in wages

to comply with Fair Labor Standards Act does not violate

§ 8(a) (5) of the National Labor Relations Act); Southern

Transport, Inc., 145 NLRB 615, 617-18 (1963) (Board opin-

ion) (same) ; cf. EEOC v. AT&T Co., 365 F.Supp. 1105, 1129

(E.D. Pa. 1973) (unilateral changes in provisions of currently

binding contract to conform with Title VII or Equal Pay Act

do not violate National Labor Relations Act), aff’d in relevant

part, 506 F.2d 735 (3d Cir. 1974) (without discussion of this

point).

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57a

sters v. United States, 431 U.S. 324 (1977), precluded

crediting the women with pre-Act longevity. Because we

find that the district court improperly applied these

decisions, we reverse.

The back-pay recovery period covers the years 1967

through 1976. During that time NWA had a pay ladder

for pursers such that salary rose with increased years of

service or “longevity.” Under this policy a man hired as

a purser in 1957 would have accumulated ten years’

longevity by 1967 and would have been paid accordingly.

The issue facing the district court was whether, for pur-

poses of computing backpay, a woman who had also been

hired in 1957 as a cabin attendant and who had worked

continuously as such until 1967 should be credited with

the same longevity in determining her 1967 salary. Un-

der the district court’s holding, the woman in this example

would be entitled only to the pay of a purser with three

years’ longevity if she were recovering under the Equal

Pay Act. She would be entitled only to the pay received

by a purser with two years’ longevity if she were recover-

ing under Title VII.

We think that a woman hired in 1957 should today be

credited with the same longevity as a man hired in that

year. This does not involve finding that discrimination

prior to the passage of the Act was somehow illegal. The

stewardesses claim no damages for pre-Act pay differen-

tials, nor could they. Their claim is that their current

status be the same as that of men who have the same job

characteristics, including job longevity. That claim of

equal treatment seems to us required by the law. Indeed,

the only case authority we have found dealing expressly

with this subject holds squarely that a back-pay award

should take into account “the length of service of the

employees,” including years of service prior to the effec-

tive date of Title VII. Sears v. Atchison, T. & S. F. Ry.,

645 F.2d 1365, 1378 (10th Cir. 1981), cert. denied, 456

U.S. 964 (1982).

58a

United Air Lines, Inc. v. Evans and Teamsters v.

United States are not to the contrary. In these cases the

Supreme Court held that bona fide seniority systems do

not violate Title VII even where they perpetuate the

effects of prior discrimination. The Court based its deci-

sions on section 703(h) of that Act, which provides that

“it shall not be an unlawful employment practice for an

employer to apply different standards of compensation, or

different terms, conditions, or privileges of employment

pursuant to a bona fide seniority or merit system...

provided that such differences are not the result of an

intention to discriminate because of race, color, religion,

sex, or national origin... .” Section 703(h), 42 U.S.C.

§ 2000e-2(h) (1976). These decisions do not apply to

cases, such as the present one, where there is no allega-

tion that a seniority system violates Title VII, but only

a claim for an appropriate remedy.” The distinction be-

tween a remedy issue and a violation issue under Title

VII was explained in Franks v. Bowman Transportation

Co., 424 U.S. 747 (1976), and repeated in United Air

Lines, Inc. v. Evans, 431 U.S. at 559. In Evans the

Court stated:

The difference between a remedy issue and a viola-

tion issue is highlighted by the analysis of § 703 (h)

of Title VII in Franks. As we held in that case, by

its terms that section does not bar the award of

retroactive seniority after a violation has been

proved. Rather, § 703(h) “delineates which employ-

ment practices are illegal and thereby prohibited

and which are not.” 424 U.S. at 758.

431 U.S. at 559 (footnote omitted) (emphasis. added).

Clearly, section 703(h) does not preclude the crediting of

51 Moreover, the district court did not hold, as appellant

argues, that Northwest’s longevity system was a bona fide

seniority system. Absent such a conclusion, there is no basis

whatever for application of the Court’s decisions in Teamsters

and Evans.

59a

retroactive pre-Act longevity in the present case. Indeed,

Franks v. Bowman Transportation highlights this point

by stating:

There is no indication in the legislative materials

that § 703(h) was intended to modify or restrict

relief otherwise appropriate once an illegal discrim-

inatory practice occurring after the effective date of

the Act is proved....

424 U.S. at 761-62.

Having demonstrated that the district court’s holding

was not required by Evans and Teamsters, we turn to the

affirmative reasons for according pre-Act longevity. To

deny women longevity credit for their pre-Act service,

when men were given such credit for doing what the

court has held to be the same work, would “differentiat[e]

between sirhilarly situated males and females on the

basis of sex.” Evans, 431 U.S. at 558. If NWA uni-

laterally computed the backpay in this way, its action

would violate Title VII; a fortiori, such a method of

calculation is not permissible as part of a judicial remedy.

Moreover, such a limited remedy would run counter to the

“make whole” purpose of Title VII. Albemarle Paper

Co. v. Moody, 422 U.S. 405, 419, 421 (1975). The Su-

preme Court has stated that Congress’ purpose in vesting

discretionary powers in the courts to provide relief under

Title VII was to “make possible the ‘fashion[ing] [of]

the most complete relief possible.’ Albemarle Paper Co.,

422 U.S. at 421 (quoting section-by-section analysis ac-

companying Conference Committee Report on the Equal

Employment Opportunity Act of 1972). We therefore

reverse the district court’s ruling on this issue and in-

struct the court to credit plaintiffs’ pre-Act longevity in

calculating backpay for the relevant, post-Act time

periods.

60a

B. Interest

1. Rate of pre-judgment interest for the 1974-82

period

In paragraph 19 of its 1974 order, the district court

made the following ruling on pre-judgment interest:

19. INTEREST—With respect to all monies to be

paid under the foregoing provisions of this Order,

the Company shall pay six percent interest per an-

num from the date the violation occurred giving rise

to said liability through the date upon which pay-

ment is made in accordance with this Order.

1974 Remedial Order, 374 F. Supp. at 1389. In 1974, the

district court believed that the judgment it was entering

was a final one (R. 7, at 4; R. 115, at 25, 26). The panel

in Laffey II, however, ruled in 1980 that the 1974 order

was not a “final judgment,” 642 F.2d 578, 583-84

(1980). This ruling had the effect of extending the pre-

judgment period from May 20, 1974 through the entry

of final judgment on November 30, 1982.

Following the decision in Laffey IJ, plaintiffs moved

for a determination of the pre-judgment interest that

should apply to this additional period. Plaintiffs noted

that interest rates generally had risen greatly after 1974

and recommended that the rate for each year of the 1974-

82 period be 90% of the average prime rate for that

year, compounded quarterly. At the hearing on plaintiffs’

motion, the district court concluded that its prior ruling

- should not be revised. We affirm.

We are unpersuaded by plaintiffs’ argument that the

district court did not make a decision as to the rate of

interest that siiould be awarded from 1974 to 1982. In

rejecting plaintiffs’ contention, the district judge stated

that he had “determined the interest to be awarded with-

out regard to the length of the pre-judgment period.”

R. 120; Laffey v. Northwest Airlines, Inc., 29 Empl. Prac.

Dec. (CCH) 25,330, 25,332 (D.D.C. Oct. 6, 1981). More

a

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over, the express terms of the 1974 order set no limit on

the length of the pre-judgment period. We stress that al-

though the 1974 judgment was ultimately declared non-

final, we entertained in Laffey I all objections to dis-

positive rulings that the parties placed before us. See

Laffey II, 642 F.2d at 584 n.49. We have discussed above

the salutary purposes served by the doctrine of the law

of the case. According to that doctrine,

a decision on an issue of law made at one stage of

a case becomes a binding precedent to be followed in

successive stages of the same litigation.

1B J. Moore, Moore’s Federal Practice 7 0.404[1] (1983).

Reconsideration of a prior decision, unappealed at an

earlier stage although the opportunity to do so was pres-

ent, is justified only in a limited number of circu:nstances:

[The law of the case] must be followed in all sub-

sequent proceedings in the same case in the trial

court or on a later appeal in the appellate court, un-

less the evidence on a subsequent trial was substan-

tially different, controlling authority has since made

a contrary decision of the lew applicable to such

issues, or the decision was ciearly erroneous and

would work a manifest injustice.

White v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967).

See also Pettway v. American Cast Iron Pipe Co., 576

F.2d 1157, 1189-90 (5th Cir. 1978), cert. denied, 439

U.S. 1115 (1979); Jennings v. Patterson, 488 F.2d 436,

441 n.4 (5th Cir. 1974). None of the above criteria for

reopening the district court’s decision obtains here. We

therefore affirm the district court’s holding that plain-

tiffs are entitled to pre-judgment interest at six percent

simple for the 1974-82 period.

2. Post-judgment interest on liquidated damages

In 1981 the district court held that the law of the case

precluded it from awarding post-judgment interest on

62a

liquidated damages. In paragraph 19 of its 1974 order,

the district court noted, it had not awarded post-judgment

interest on pre-judgment interest. By analogy, it rea-

soned, that ruling “is fully applicable to liquidated dam-

ages since liquidated damages are a substitute for pre-

judgment interest” (R. 119, at 2). We do not believe

that law of the case settles this issue. Our evaluation of

the merits leads us to conclude that plaintiffs are entitled

tc post-judgment interest on liquidated damages. Conse-

quently, we reverse.

The district court did not award liquidated damages

until 1980; it thus had no occasion to decide in 1974—

and it did not decide in 1974—whether plaintiffs were

entitled to post-judgment interest on liquidated damages.

That question did not arise until 1981, following our

Laffey I decision. Since the district court had not previ-

ously decided this question, it was “free to rule thereon

as it thought proper.” Salvoni v. Pilson, 181 F.2d 615,

619 (D.C. Cir.), cert. denied, 339 U.S. 981 (1950).

The district court’s 1974 ruling refusing to award post-

judgment interest on pre-judgment interest does not ap-

ply by analogy here, for liquidated damages are not

merely “a substitute for pre-judgment interest” (R. 119,

at 2). As defined by this court in Thompson v. Sawyer,

678 F.2d 257, 281 (1982), liquidated damages are “com-

pensatory, intended to reimburse workers for intangible

losses—difficult to prove but nonetheless the very real

consequences of unfair wages.” Liquidated damages differ

in amount and, to some extent, in kind from pre-judgment

interest. Inasmuch as the law of the case did not control

the question whether post-judgment interest should accrue

on liquidated damages, that issue was and is open for

determination on the merits.

The federal post-judgment interest statute, 28 U.S.C.

§ 1961 (1982), provides, in relevant part:

Interest shall be allowed on any money judgment in

a civil case recovered in district court... .

63a

This statute has been interpreted to mean that

once a judgment‘is obtained, interest thereon is man-

datory without regard to the elements of which that

judgment is composed.

Perkins v. Standard Oil Co., 487 F.2d 672, 675 (9th Cir.

1973); see R.W.T. v. Dalton, 712 F.2d 1225 (8th Cir.

1983). The law requires the awarding of post-judgment

interest on all elements of the judgment, including liqui-

dated damages. We therefore reverse the determination

below and hold that plaintiffs are entitled to post-

judgment interest on liquidated damages.

CONCLUSION

For the reasons stated, we instruct the district court

on remand to (1) allow backpay under Title VII begin-

ning two years, not three years, prior to the filing of the

first EEOC charge; (2) credit plaintiffs with pre-Act

longevity in calculating backpay due for post-Act service;

and (3) allow post-judgment interest on liquidated dam-

ages. In all other respects, we affirm the district court’s

dispositions.

It is so ordered.

tte

65a

APPENDIXB #

OPINION OF THE COURT OF APPEALS

IN “LAFFEY I”

Huited States Court of Apueals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 74-1791

Mary P. LaFPEY, ET AL

v.

NORTHWEST AIRLINES, INC., APPELLANT

Am LINE PILOTS ASSOCLATION, NON-ALIGNED PARTY

No. 75-1334

Mary P. LAFFEY, ET AL., APPELLANTS

v.

NORTHWEST AIRLINES, INC.,

Arm LINE PILOTS ASSOCIATION, NON-ALIGNED PARTY

Appeals from the United States District Court for the

District of Columbia

(D.C. Civil Action No. 2111-70)

Argued September 9, 1975

Decided October 20, 1976

Amended by Order September 8, 1977

SS

66a

Henry Halladay, with whom William E. Martin and

John L. Richardson, were on the brief for appellant in

No. 74-1791 and appellee in No. 75-1334.

Michael H. Gottesman, with whom Dennis D. Clark,

Robert M. Weinberg and George H. Cohen, were on the

brief for appellants in No. 75-1334 and appellees in No.

74-1791.

Linda Dorian, Attorney, Equal Employment Oppor-

tunity Commission of the bar of the District of Columbia

Court of Appeals, pro hac vice, by special leave of court,

with whom Beatrice Rosenberg and Charles L. Reischel,

Attorneys, Equal Employment Opportunity Commission,

were on the brief for Equal Employment Opportunity

Commission as amicus curiae.

Robert S. Savelson and Donald P. Capuano, were on

the brief for appellee Air Line Pilots Association. Glenn

V. Whitaker also entered an appearance for appellee

Air Line Pilots Association.

A. Andrew Giangreco and Samuel Borzilleri entered

appearances for appellee Transportation Workers Union.

Before BAZELON, Chief Judge, and TAMM and ROBLN-

SON, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBINSON.

ROBINSON, Circuit Judge: Northwest Airlines (NWA)

appeals from a judgment of the District Court’ declar-

ing certain of its personnel policies violative of the Equal

Pay Act of 1963* and Title VII of the Civil Rights Act

Laffey Vv. Northwest Airlines, 366 F.Supp. 763 (D.D.C.

1973) ; Laffey v. Northwest Airlines, 374 F.Supp. 1382 (D.D.C.

1974). See also Laffey v. Northwest Airlines, 392 F.Supp. 1076

(D.D.C. 1975), an adjudication not before us on this appeal.

*Pub. L. No. 88-38, §3, 77 Stat. 56 (1963), 29 U.S.C.

§ 206(d) (1970). Hereinafter we cite this legislation and in |

most instances other legislation by reference only to the .

United States Code. |

ee EA SER ERIO Se, EO ee

:

;

67a

of 1964,’ and granting injunctive and monetary relief.

The principal practice in issue here is the payment to

women employed as stewardesses of salaries lower than

those paid to men serving as pursers for work found by

the court to be substantially equal. Others are the pro-

vision to stewardesses of less desirable layover accom-

modations and allowances for maintenance of uniforms,

and the imposition of weight restrictions upon steward-

esses only. In varying respects and degrees NWA chal-

lenges findings of fact‘ and conclusions of law * on these

matters, as well as the propriety of the remedial meas-

ures adopted.*

On careful review of the extensive record on appeal,

we sustain the District Court’s adjudications on all sub-

stantive questions of statutory infringement. We also

uphold most but not all of the court’s specifications on

relief.’ Thus we affirm the judgment in part, vacate it

in part and remand the case to the District Court for

further proceedings.

I. HISTORY OF THE EMPLOYMENT PRACTICES

A. Stewardess and Purser Positions

Between 1927 and 1947, all cabin attendants employed

on NWA’s aircraft were women, whom NWA classified

*Pub. L. No. 88-352, tit. VII, § 701 et seq., 73 Stat. 253

(1964), as amended, 42 U.S.C. § 2000(e) et seq. (1970).

*See Laffey v. Northwest Airlines, supra note 1, 366 F.

Supp. at 763-789.

*See id. at 789-790; Laffey v. Northwest Airlines, supra

note 1, 374 F.Supp. at 1390.

* Laffey v. Northwest Airlines, supra note 1, 374 F.Supp.

at 1382-1390.

* Our discussion takes the following order: in Part I, the

history of the employment practices in issue; in Part II, the

applicable statutes; in Part III, the Equal Pay Act claims;

in Part IV, the Title VII claims; in Part V, the remedial

order; and in Part VI, the liability of the unions.

68a

as “stewardesses.”* In 1947, when the company initiated

international service, it established a new cabin-attendant

position of “purser,” * and for two decades thereafter ad-

hered to an undeviating practice of restricting pwr'ser

jobs to men alone.” In implementation of this policy,

NWA created another strictly all-male cabin-attendant

classification—“flight service attendant”’—to serve as a

training and probationary position for future pursers.**

NWA has maintained a combined seniority list for pur-

sers and flight service attendants, on which seniority as

pursers accrued to flight service attendants immediately

upon assumption of their duties as such, and a separate

seniority list for stewardesses.* From 1951 until 1967,

flight service attendants had a contractual right to au-

tomatic promotion to purser vacancies in the order of

their seniority.“

It was not until 1967, when a new collective bargain-

ing agreement was negotiated, that stewardesses first

became contractually eligible to apply for purser posi-

* Laffey v. Northwest Airlines, supra note l, 366 F.Supp.

at 735 (Find. 6).

* Id.

© Jd. This bar to access, found in violation of Title VII,

Laffey v. Northwest Airlines, supra note 1, 366 F.Supp. at

789 (Concl. 5), is not contested by NWA on appeal. The

company challenges only the finding that the purser and

stewardess jobs are intrinsically equal and thus commanding

equal salaries even for those stewardesses who might not

seek purser status.

1 Laffey v. Northwest Airlines, supra note 1, 366 F.Supp.

at 765 (Find. 6).

12 Id. at 766 (Find. 13).

13 Jd. at 766-767 (Find. 14). A small number of flight

service attendants in order to maintain their base location

in Hawaii chose not to become pursers.

69a

tions."* During negotiations on the issue, NWA, for both

the 1967 agreement and another in 1970, rejected an

additional union proposal that stewardesses, like flight

service attendants, be allowed to progress to purser slots

according to seniority, stating that the company “prefers

males and intends to have them.” The company has

also insisted upon the right of “selectivity” in choosing

which stewardesses might become pursers, and has im-

posed other restrictions on stewardesses seeking purser

vacancies which had not previously been laid on flight

service attendants.“

Company policy had been to fill purser openings by

hiring “men off the street” and training them for a

short time, after which notices of purser vacancies would

be posted.” Following the 1967 collective bargaining

agreement affording stewardesses access to these jobs,

however, NWA hired five male purser-applicants with-

Id. at 767-768 (Finds. 23, 24).

* Id. at 767-768, 778-779 (Finds. 23, 45).

“Id. at 767-769 (Finds. 23, 24). Stewardesses who bid

unsuccessfully for purser positions are permitted a review

of the company’s action only if they have four years of serv-

ice for the company “on flights to which a purser has been

assigned.” The probationary period for pursers has been

extended from four to six months. Flight service attendants

who become pursers are given credit for their entire service on

the purser seniority list, while stewardesses who become

pursers receive no seniority credit for their service as stew-

ardess, and are required to go to the bottom of the purser

seniority list. Because of an overlap at the upper end of the

stewardess salary scale and the lower end of the purser salary

scale, senior stewardesses who become pursers will not receive

any greater pay as purser for a significant period of time.

The District Court found that these requirements were a sig-

nificant deterrent to stewardess-bidding for purser vacancies.

Id. at 768-769 (Find. 24). This finding is not challenged by

NWA on appeal.

7” Id. at 769 (Find. 27).

70a

out ever posting notices of the vacancies."* In 1970, after

three years of ostensibly open admission to purser status,

NWA had 137 male cabin attendants—ail as pursers—

and 1,747 female cabin attendants—all but one as stew-

ardesses.**

The sole female purser at that time was Mary P.

Laffey, who bid for a purser vacancy in 1967, after nine

years’ service as a stewardess.” Although that purser

position was scheduled to be filled in November, 1967,

processing of her application was delayed assertedly for

the reason that NWA needed to administer new tests to

purser applicants." These tests had never previously

been used in selecting pursers, and during the interim

between Ms. Laffey’s application and her appointment

NWA hired two male pursers without benefit of any

tests.* Finally, in June, 1968, Ms. Laffey became a

purser, but was placed on the bottom rung of the purser-

salary schedule and received less than her income as

a senior stewardess.”

3 [d. (Find. 28).

Id. at 773 (Find. 38). These statistics changed signifi-

cantly after suit was filed, when NWA began to diversify male-

female ratios in different occupations. Some men were placed

in the lower-paid categories by demoting pursers and by hir-

ing new male applicants as “stewards”—who were paid at the

stewardess rate. Jd. at 767, 770-771 (Finds. 20, 35).

20 Id. at 769-770 (Find. 29).

21 [d. at T70 (Find. 30).

23 Id.

73 [d. (Finds. 31, 33). A pay decrease for progression from

stewardess to purser had been specifically prohibited by the

1967 collective bargaining agreement, which provided:

No reduction in pay shall be suffered by an employee

by virtue of his accepting a purser assignment.

NWA eventually acquiesced and paid Ms. Laffey her stew-

ardess salary rate. Jd. (Find. 33).

7la

B. Stewardess and Purser Duties

On this appeal, NWA does not challenge holdings by

the District Court that Title VII was Violated by NWA’s

to hire female Pursers.** Rather, the appeal

** NWA does not contest the conclusions following:

3. Northwest Airlines, Inc. has discriminated on the

basis of sex in willful violation of the Equal Pay Act, 29

U.S.C. § 206(d) (1), 29 U.S.C. § 255 (a), by Paying Mary

P. Laffey a lower Salary as a purser than it pays to male

pursers with equivalent length of cabin attendant sery-

ice... .

5. Northwest Airlines, Inc. has violated Title VIT-

(a) By discriminating against females because of

their sex in filling purser vacancies from July 2, 1965

date.

(b) By Providing from June 16, 1967 to date that

stewardesses who become pursers do not get credit

stewardesses from bidding on Purser vacancies, faj]-

ing to post notices of all purser vacancies at al]

cabin attendants bases, from June 15, 1967 to date.

(Continued]

72a

focuses primarily on whether the payment of unequal

salaries to stewardesses and pursers, while occupying

positions as such, implicates Title VII and the Equal

Pay Act. The purser wage scale ranges from 20 to 55

percent higher than salaries paid to stewardesses of

equivalent seniority.» The Equal Pay Act™ forbids this

pay differential unless greater skill, effort or responsi-

bility is required to perform purser duties.* Title VI1*

likewise proscribes inferior sex-based compensation plans

for women and, additionally, extends its protection to ban

conditions of employment imposed discriminatorily upon

women employees.”

2¢ [Continued]

(f) By demoting Mary P. Laffey from purser to

stewardess and continuing her as a stewardess, by

paying her a lower salary as a purser than it paid

male pursers hired as cabin attendants subsequent

to her, thus perpetuating the effects of past discrim-

ination.

(g) By imposing a “chain of command” aboard

planes under which all male cabin attendants, irre-

spective of classification or length of service were

superior to all female cabin attendants.

(h) By forbidding only female cabin attendants to

wear eyeglasses, . . ., to have free choice of lug-

gage, . . . and by imposing a shorter maximum

height requirement for female cabin attendants.

Id. at 789-790 (Concels. 3, 5).

23 Td. at 788 (Find. 80).

2° The relevant portion thereof is quoted at text infra at

note 90.

27 We discuss this prohibition, and exceptions thereto, in

Part III, infra.

28 The relevant portion thereof is quoted at text infra at

note 91.

2° Discussed in Part IV infra.

73a

—(1) Flight Assignments

In gauging whether NWA’s Pursers and stewardesses

performed equal work, the District Court analyzed in

great detail NWA’s flight operations and its usage cf the

three different categories of cabin attendants. NWA flies

diverse itineraries, which affect the type of personnel

assigned to the flight, and which are categorized by par-

ticular terminology. In brief, “pure domestic commercial

flights” are regularly-scheduled commercial flights which

begin and end in the United States, and do not continue

to the Orient.* Other commercial flights originate in

one city in the United States, fly to an intermediate desti-

nation in the United States and then on to the Orient;

and the intra-United States portions of such trips are

known as “domestic Segments of international flights”.=

“Transpacific commercial flights” are regularly-scheduled

flights between Anchorage, Seattle, Honolulu and Tokyo;

while “commercial interport flights” are regularly sched-

uled flights between Tokyo and other Asian cities,2:

“Military air charters” are flights contracted with the

United States Government to provide regularly-scheduled

military air charter service.3

Pure domestic commercial flights are, with some ex-

ceptions, served exclusively by stewardesses and flight

Service attendants.** Pursers are ordinarily utilized on

interport flights, transpacific commercial flights, domestic

*° Laffey v. Northwest Airlines, supra note 1, 366 F.Supp.

at 775-776 (Find. 40).

31 Id.

ad *

3 Id.

** At times, NWA has chosen to utilize pursers on domestic

flights. Id. at 775-778 (Finds. 40, 41).

* Id. at 776-778 (Find. 41).

74a

segments of international flights, and on all types of

charters, military or otherwise, including pure domestic

flights.** Since 1967, the company has also maintained

a crew of stewardesses with proficiency in one or more

foreign languages, who are assigned to certain interna-

tional flights.”

NWA schedules a different cabin-attendant crew on

each flight segment; one crew will fly the domestic seg-

ment, another will take over for the transpacific link, and

still a third is used on the interport portion.* Pursers

and stewardesses bid separately, according to seniority,

for monthly schedules.”

—(2) Overall Evaluation

Probing beneath the different titles, bidding schedules

and salaries, the District Court made extensive factual

findings comparing the work actually done by pursers

and stewardesses, and held it to be essentially equal when

considered as a whole.** For example, pursers are as-

signed to the first-class section of the aircraft, which has

a smaller passenger load per cabin attendant and a cor-.

respondingly more leisurely work pace as compared with

the chores inherited by stewardesses assigned to the

tourist-class section.‘ The hourly work load also tends

to be greater on the “short hop” domestic schedules than

on the longer international flights.*

3° Td.

st [d. at 778 (Find. 44).

%8 Td. at 778 (Find. 42).

s° [d. (Finds. 42, 43).

Id. at 775-778 (Finds. 40-78).

*t Td. at 779 (Finds. 49, 50).

* [d. (Find. 50).

75a

Duties performed do not differ significantly in nature

as between pursers and stewardesses. All must check

cabins before departure, greet and seat passengers, pre-

pare for take-off, and provide in-flight food, beverage and

general services.“* Ali must complete required documen-

tation, maintain cabin cleanliness, see that passengers

comply with regulations and deplane passengers.** The

premier responsibility of any cabin attendant is to insure

the safety of passengers during an emergency, and cabin

attendants all must possess a thorough knowledge of emer-

gency equipment and procedures on all aircraft. All

attendants also must be knowledgeable in first aid tech-

niques and must be able to handle the myriad of medical

problems that arise in flight.“ Food service varies greatly

between flights, but pursers engage in no duties that are

not also performed on the same or another flight by

stewardesses.“. Another important duty—building good-

will between NWA and its passengers—depends on the

poise, tact, friendliness, good judgment and adaptability

of every cabin attendant, male or female.

—(3) Domestic and International Flights

The District Court found that when pursers are sched-

uled on pure domestic flights, their duties are identical

to those of stewardesses functioning as “senior cabin at-

tendants”—the most senior purser, or the most senior

stewardess on flights with no purser.’* A substantial per-

“3 Id. at T79-780 (Find. 51).

“ Id.

*8 Td. at 780 (Find. 52).

* 14.

** Id. at 781 (Find. 57).

“ Id. (Find. 53).

** Id. at 786-787 (Find. 71).

76a

centage of NWA’s overall utilization of pursers is on

pure domestic flights and domestic segments of interna-

tional flights. Similarly, a substantial percentage of the

company’s use of pursers is their assignment to military

air charter flights." Many pursers fly flights of these

types exclusively for months or years at a time.*

Although, as NWA argues, after January, 1971, pur-

sers as a group have spent more nights away from home

than do stewardesses, the District Court found that these

longer trips “do uot constitute substantially dissimilar

working conditions from those of other cabin attend-

ants” :*

More consecutive days away from home also means

more consecutive days at home during the month.

The preferences of cabin attendants in this regard

are highly subjective—some prefer one long trip a

month, while others prefer shorter trips; .... Be

cause ground time is not counted toward flight time,

purser schedules (encompassing longer dights) en-

tail fewer actual hours of work... .*

—(4) Documentation Tasks

With respect to documentation responsibilities, the Dis-

trict Court found that pursers and stewardesses have

different, but comparable, duties.** Stewardesses alone

sell liquor, and are alone required to complete inventory

8° Id. at 787 (Find. 73).

%t Jd. On military air charter flights, all phases of work done

by pursers is less demanding than on other flights. There is

no class-service, no liquor, and only very simple food service.

83 Id.

*3 Jd. at 787-788 (Find. 75).

* Td.

8 Td. at 781-785 (Finds. 58-64).

77a

and sales records, and beverage usage reports.** On flights

carrying tax-free liquor, customs inventory forms must

be completed both by stewardesses and pursers,* and all

cabin attendants are subject to discipline for error.“ On

all flights, the senior cabin attendant and the senior —

in tourist—the senior stewardess in the tourist class—

must make appropriate entries in the log book,*® and also

prepare an in-flight-service report, seating charts, ac-

cident reports and other diverse documents.”

Pursers are responsible for administering international

quarantine procedures for passengers, crew and cargo."

As the requirements vary from port to port, pursers must

keep their knowledge current in order to comply with

* Td. at 781 (Find. 58). Liquor is provided free of charge in

the first-class compartment, where the pursers work. Hence

pursers must only complete a beverage-use form.

st Id.

8 Td.

** The log contains a listing of cabin items in need of repair.

“See the listing in Laffey v. Northwest Airlines, supra

note 1, 366 F.Supp. at 781-782 (Find. 59). There are also

various other forms which the senior cabin attendant is re

quired to complete. For example, on flights from mainland

United States to Hawaii, the senior cabin attendant, who al-

most always is a stewardess, must instruct passengers in the

completion of an agricultural declaration form, spray the

cabin with insecticides and record this information on a “cer-

tificate of disinsectization”. Only stewardesses and flight serv-

ice attendants have been regularly scheduled on these flights.

On flights between the United States and Winnepeg, stew-

ardesses must oversee completion of Canadian and United

States customs forms. The senior cabin attendant also has

direct personal responsibility for the safe transfer of pas-

sage aliens who transit through the United States without

visas, under permission from the Immigration Service—the

so-called “TRWOV” passengers. Jd. at 782 (Find. 60).

“ Id. at 783 (Find. 61).

78a

applicable regulations.* These duties, however, are not

required on all flights to which pursers are assigned, such

as on pure domestic flights on which pursers perform no

documentation duties, and on certain domestic segments

on which such purser duties are minimal“ To boot,

pursers are instructed to carry out their international

documentation responsibilities at times when no significant

passenger service is required, and other cabin attendants

perform all other necessary services during those times.“

The District Court found that “the documentary duties

described which are... assigned only to pursers involved

no greater skill, effort or responsibility than the steward-

ess job.” “

—(5) Stewardess and Purser Responsibilities

The District Court also examined another general, more

intangible, duty advanced by NWA as a factor render-

ing the purser job different in kind from the stewardess

position. The cofmpany’s cabin service manual states that

the senior purser on a flight will always be considered the

senior cabin attendant and as such must coordinate the

activities of the other attendants, and is to be held “re-

sponsible and accountable” for the proper rendering of

service on that flight.“ But the manual further provides

that if no purser is scheduled, the most senior stewardess

* Id.

* Jd. at 784 (Find. 62). On east-bound segments of domestic

flights, pursers need only transport the pouch containing the

documents and deliver it to another company transportation

agent upon arrival at the aircraft’s destination. On west-

bound portions of domestic segments of flights from the

United States to Tokyo and on interport flights, the docu-

mentation duties are more substantial.

* Id. at 784-785 (Find. 63).

* Jd. at 785 (Find. 64).

« Jd. (Finds. 65-66).

No

79a

will serve as senior flight attendant and will similarly

be charged with coordination of cabin service, although

she is accountable only for the conduct of service in the

section of the aircraft in which she works, responsibility

for the remainder being placed on the senior attendant

in the other section of the aircraft."

Senior cabin attendants, be they purser or stewardess,

have a number of supervisory duties. These include moni-

toring and, where necessary, correcting the work of other

cabin attendants; determining the times of meals and

movie showings; shifting cabin attendants from section

to section to balance workloads; and giving pre-departure

briefings on emergency equipment and procedures.“ On

large planes, even if a purser in the first-class section is

designated the senior cabin attendant, the senior in tourist

shoulders these same burdens in her section of the air-

craft—overseeing the great majority of passengers and

cabin attendants.” Stewardesses and pursers alike are

subject to disciplinary action if they fail to carry out

their “supervisory responsibilities.” ”

There is, however, no merit system maintained to re-

ward those who “supervise” better than others; all pur-

sers and all stewardesses are on uniform, separate wage

scales, regardless of whether—or how well—an individual]

performs.”

NWA asserts that it hired, trained and promoted male

pursers in the belief that they would exercise leadership

and be “responsible and accountable for the entire cabin

* [d. (Find. 66).

“ Id. at 785-786 (Find. 67).

* Id. at 786 (Find. 68).

"° Id. at 785-786 (Find. 67).

"Id.

80a

service staff,” whereas stewardesses functioning as senior

cabin attendants on particular flights would be responsible

for coordination of cabin service on the entire flight but

would be “accountable” only for the manner of service in

their assigned sections of the aircraft." The District

Court found that, in practice, this distinction between

levels of responsibility and accountability is illusory:

Only in the purser’s formal relationship with the

Company does his accountability differ from the non-

purser senior cabin attendant and that difference is

— from status rather than as a function of the

a

The court found, moreover, that the senior cabin attend-

ant’s duties are not substantially greater than the ordi-

nary cabin attendant’s function:

. . . Cabin service attendants are employed to serve

and protect Company passengers. The “Supervisory”

functions of senior cabin attendants—whether purser

or stewardéss—are less important than, and require

no greater skill, effort or responsibility, than the

other functions assigned to all cabin attendants.” **

C. The District Court’s Conclusions

Careful evaluation of the facts comprehensively found

led the District Court to conclude that NWA had dis-

criminated against women cabin attendants on the basis

of sex, in violation of Title VII and the Equal Pay Act,

by compensating stewardesses and pursers unequally for

equal work on “jobs the performance of which requires

equal skill, effort and responsib’lity and which are per-

Id. at 786 (Find. 69).

"Id. NWA has consistently refused to pay stewardesses

acting as senior cabin attendants any supplement for their

services. Jd. (Find. 70).

Jd. (Find. 69).

8la

formed under similar working conditions.” "* More spe

cifically, the court found that NWA had discriminated in

“willfull violation” “* of the Equal Pay Act” (a) by pay-

ing female stewardesses lower salaries and pensions than

male pursers; (b) by providing female cabin attendants

less expensive and less desirable layover accommodations

than male cabin attendants; (c) by providing to male but

not to female cabin attendants a uniform-cleaning allow-

ance; and (d) “by paying Mary P. Laffey a lower salary

as a purser than it pays to male pursers with equivalent

length of cabin attendant service.” All of these same

actions were held by the District Court also to be viola-

tions of Title VII” and the court further held that Title

VII violations arose out of other forms of company dis-

crimination, inter alia, (a) in filling purser vacancies;

(b) in denying to stewardesses who became pursers the

same seniority rights and pay given male flight service

attendants similarly promoted; (c) in changing proce-

dural requirements for becoming a purser so as to deter

female applicants, even after the 1967 agreement; (d)

in erecting a “chain of command” on flights under which

all male cabin attendants, regardless of seniority or clas-

sification, were superior to all females; and (e) in impos-

ing on women alone a ban on eyeglasses, prescribed lug-

gage, and weight and height restrictions."

"3s Id. at 789 (Concls. 2, 4).

"6 Id. (Concl. 2).

29 U.S.C. § 206(d) (1), 29 U.S.C. § 255(a).

" Laffey V. Northwest Airlines, supra note 1, 366 F.Supp. at

789 (Concls. 2, 3). Conclusion of Law No. 3, referring spe-

cifically to Ms. Laffey, was not appealed by NWA. See note 24

supra.

42 U.S.C. § 2000(e)-2(a).

” See text supra at note 14.

* Laffey V. Northwest Airlines, supra note 1, 366 F.Supp.

at 780-790 (Concl. 5). Many of these are not challenged by

NWA on appeal.

82a

On this appeal, NWA challenges the District Court’s

central ruling that disparate compensation for equal work

violates Title VII additionally to the Equal Pay Act."

It attacks also the court’s holding that stewardesses and

pursers are entitled to equal pay,“ and the corollary

finding that stewardesses who became pursers were im-

properly denied credit for their stewardess seniority on

the purser seniority list. The company also disputes the

court’s conclusion that Title VII was violated by its

policies regarding cleaning allowances and layover ac-

comodatior~.* Lastly, it objects to the remedial measure

adopted by the court to cure the conceded violation as to

weight restrictions.** These contentions, in turn, we now

examine.

II. THE APPLICABLE STATUTES

By the Equal Pay Act, adopted in 1963 as an addition ”

to the Fair Labor Standards Act of 1938,°° Congress

ordained: 7

No employer having employees subject to any provi-

sions of this section ” shall discriminate. . . 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...

* See Parts III, [V infra.

*3 See Parts III, [IV infra.

** See Parts III, [V infra.

83 See Part IV infra.

* See Part V infra.

** Pub. L. No. 88-38, § 3, 77 Stat. 56 (1963).

* Act of June 25, 1938, ch. 676, 52 Stat. 1060, as amended,

29 U.S.C. §§ 201 et seq. (1970).

* NWA employees are unquestionably within the cover-

age of the Equal Pay Act.

,

83a

for equal work on jobs the performance of which re-

quires equal skill, effort, and responsibility and which

are performed under similar working conditions,

except where such payment is made pursuant to (i)

a seniority system; (ii) a merit system; (iii) a sys-

tem which measures earnings by quantity or quality

of production; or (iv) a differential based on any

other factor other than sex... .”

By Title VII, Congress has also decreed, with exceptions

not immediately relevant, that

{i]t shall be an unlawful employment practice for

an employer—

(1) to fail or refuse to hire or to discharge

any individual, or o

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