# Appendix — Northwest Airlines, Inc. v. Laffey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1985
- **Citation:** 469 U.S. 1181

## Text

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— 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

~ ee See 2) ee eee ee

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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43a

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

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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 otherwise to discriminate
against any individual with respect to his com-
pensation, terms, conditions, or privileges of em-
ployment, because of such individual’s race,
color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his em-
ployees or applicants for employment in any
way which would deprive or tend to deprive
any individual of employment opportunities or
otherwise adversely affect his status as an em-
ployee, because of such individual’s race, color,
religion, sex, or

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1745%3A2. Public record. Not legal advice.