Amicus Curiae Brief — Johnson v. Railway Express Agency, Inc.

INDEX

RT PR ih tnnetn beds cdaadand ca heneeun 1

I hick cnnnnnsc nnd ecbeeek ieee iemenann 1

I oo 5 os n pekinese bccdenendanknaceRichs 2

I canna cktneeedcusuenctuneckéhace 2

Ne Picci a acd Newsies kha dnnckann seein 4

Introduction and summary of argument---------------- 7

Argument: :

A. The congressional purpose is effectuated by per-

mitting an individual aggrieved by employment

discrimination to delay bringing suit under Sec- -

tion 1981 until after issuance of the notice of his

right to sue under Title VII__.__._.....-.---- 9

1, An -individual aggrieved by employment

discrimination may reasonably desire to

assert claims for relief under both Section.

WOR. BAG We iia bn kcnes ni. co-... 9

2. Congress did not intend to compel an ag-

grieved individual to sue under Section

1981 prior to completion of the Commis-

sion’s efforts to obtain voluntary com-

B. The running of the limitation period for bringing

suit under Section 1981 serves no purpose during

the pendency of timely Title VII charges based

upon the same factual allegations__-_-__-__-_--_-_- 18

CR ck cincndiatsucdcedenenkedbapes chun oiuad 22

CITATIONS

Cases:

Alexander v. Gardner-Denver Co., 415 U.S. 36- - - - -- 10, 11, 35

American Pipe & Construction Co. vy. Utah, 414 US.

as i pete nnecn See 8, 19, 20,21 %

Auto Workers v. Hoosier Corp., 383 U.S. 696______.__- 7

Baker v. Chicago Fire and Burglary Detection, Inc.,

Pt OE ckatabadedakbadeiwidendakanande 13

Berry v. Pacific Sportfishing, Inc., 372 F.2d 213, cer-

CE GN, BO We Bhan ik oie cccncncnscs 21

Fa)

559-S883—74——-1

Cases—Continued

Boudreaus v. Baton Rouge Marine Contracting Co.,

og Ae gk Se ee re eae ar

Brady v. Bristol-Meyers, Inc., 459 F. 2d 621__--------

Brown v. Gaston County Dyeing Machine Co., 457

F. 2d 1377, certiorari denied, 409 U.S. 982________--

Burnett v. New York Central R. Co., 380 U.S. 424.__ 19,

Caldwell v. National Brewing Co., 443 F. 2d 1044,

certiorari denied, 405 U.S. 916_....................

Caperci v. Huntoon, 397 F. 2d 799, certiorari denied,

Be Fs anh ie dna Goede cnstwncecccwcs

Crown Coat Front Co., Inc. v. United States, 386 U.S.

Culpepper v. Reynolds Metals Co., 421 F. 2d 888. _-----

Drew v. Liberty Mutual Insurance Co., 480 F. 2d 69,

certiorari denied, June 3, 1974, No. 73-312_____._--

Equal Employment Opportunity Commission v. Chrom-

CC, GEE Fs Oe Fk i iw kik ies ence iennnd on

Franks v. Bowman Transportation Co., 495 F. 2d

Guerra v. Manchester Terminal Corp., No. 73-1907,

NE PU Bh, FIG iis vik hs Sec nnn sn

Henderson v. First National Bank of Montgomery, 344

i ND, BET ao va ncn ieeccclioessneceixen

Holmberg v. Armbrecht, 327 U.S, 392__..-..---------

Howard v. Lockheed-Georgia Co., 372 F. Supp. 854----

Humphrey v. Southwestern Portland Cement Co., 369

F. Supp. 832, reversed on other grounds, 488 F. 2d

Jackson v. Statler Foundation, 496 F. 2d 623___-_----

Jones v. Alfred Mayer Co., 392 US. 409_...-.------

Long v. Ford Motor Co., 496 F. 2d 500___-------- 12,

Loo v. Gerarge, 374 F. Supp. 1338__.-.-------------

Macklin v. Spector Freight Systems, Inc., 478 F. 2d

Riedie ¥. Wool, 600 ©: 38 G08... . conus 5s..

Malone v. North American Rockwell Corp., 457 F. 2d

itt hd chisbiGisbebrhiddichunp hers nanemnnes

Manseli-w* Saunders, 372 F. 2d 573_.....-----------

| MeAllister v. Magnolia Petroleum Co., 357 U.S. 221---

- McDonnell Douglas Corp. v. Green, 411 U.S. 792... ---

~ Moore v. Fields, 464 F. 2d 549_________-- nee ih 7 Lee

Moore v. Sunbeam Corp., 459 F, 2d 811_.-.---------

12

20, 21

11

12, 13

11

*

ee ee ee te a

Ill

Cases—Continued

Moviecolor Limited v. Eastman Kodak Company, 288

F. 2d 80, certiorari denied, 368 U.S. 821__________

Order of Railroad Telegraphers v. Railway Express

pen, One, TE UM, POR. go cs

Sanchez v. Trans World Airlines, Inc., 499 F. 2d 1107.

Stamps v. Detroit Edison Co., 365 F. Supp. 87__----

Sullivan v. Little Hunting Park, Inc., 396 US. 229...

Van Hoomissen v. Xerox Corporation, 368 F. Supp.

WOO sb neu kesniadapecieesekaeecbiccel. Jiu

Waters v. Wisconsin Steel Works of International

Harvester Co., 427 F. 2d 476, certiorari denied,

ME TE ON bake ce bcceee ee

Os Pe nhdenindnckwnd kebagacnceke washes ccbbcaa

Young v. International Telephone & Telegraph Co.,

Ee ek oe

Statutes:

Civil Rights Act of 1866, Section 1, 14 Statr27, as amended,

42 U.S.C. 1981___.__- 2, 5, 7, 8, 9, 11, 12, 13, 14, 16,

eee. ok...

Oe Ss SI oii ck on cca mccdacuca

Civil Rights Act of 1964, Title VII, 78 Stat. 259, as

amended, 42 U.S.C. 2000e, et seq.:

Section 701(b), 42 U.S.C. 2000e(b)___________.

Section 706, 42 U.S.C. (1970 ed.) 2000e-5______

Section 706(b), 42 U.S.C. (1970 ed., Supp. II)

ID iiss ce ecdns ie eee.

Section 706(d), 42 U.S.C. (1970 ed.) 2000e-5(d) _-

Section 706(e), 42 U.S.C. (1970 ed., Supp. II)

ce a ce ee ROR AE Siar led *) Sm NN ee

so coeds a

Section 706(f)(1), 42 U.S.C. (1970 ed., Supp. II)

PI ok oa bp Sos ocd ec.

ee

Section 706(k), 42 U.S.C. (1970 ed., Supp. ID)

IDK. 6.0 cnekncuaken Soe ccs

17, 21

12

Pe i te

a oS Rrerces |

oe ork eae ae path dS

1 chit Ne oti:

IV

Statutes—Continued Page

Equal Employment Opportunity Act of 1972, Section

i I io ev ocitcinciedkcbks de cu coma teus 2

Be RE ES wo icin nue ca ekn we Geko he obcnknun 8

Tenn. Code Ann.:

IN BFR Sirk beiewe kn kn cence SS leceabake 8, 19

I OR oe A hn hooks cc eines 7

Miscellaneous:

OR Sa ik bos bn cn cad cannes 9

130 Comp. Roc. 7207-(3004).. .............-.....-. 14

118 Cong. Rec. 3371-3373 (1972) -.---.------------ 11

H. Rep. No. 238, 92d Cong., Ist Sess._------------ 11

es GD OE, BOs Bio cin neko eens ccc ncss 5

S. Rep. No. 238, 92d Cong., Ist Sess.._..---.------ 11

SEED SETA REARS NORE TR, Fe Spe ORL HED oy IEE TTS

Hn the Supreme Court of the Cited States

tome

OcvroBeR TERM, 1974

No. 73-1548

Wintit JoHNson, JR, PETITIONER

wy

‘RatLWay Express AGENcY, INC., .ET. AL.

ON WRIT OF CERTIORART TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This submission is made in response to the Court’s

invitation to the Solicitor General to file a brief ex-

pressing the views of the United States.

OPINIONS BELOW

The opinion of the district court (Pet. App. 6a-

12a) is not officially reported. The opinion of the

court of appeals (Pet. App. 13a-2la) is reported at

489 F. 2d 525. The opinion of the court of appeals

denying rehearing (Pet. App. 22a-26a) is reported

“ at 489 F. 2d 530.

{ JURISDICTION

The judgment of the court of appeals was entered

on November 27, 1973, and a petition for rehearing

(1)

eid ces AS RMB Re Ronis ae ae pel ated at

LLL TE BASEN CID PELE AG Sg ARM ENGELS AES ANE AS DiC AG oat te DT ELS Se OTERO CE BL ROR ONG ee 2

9

was denied on January 15, 1974. The petition for a

writ of certiorari was filed on April 15, 1974 and was

granted on June 3, 1974. The jurisdiction of this

Court rests on 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the running of the period of limitation for

bringing an action for emplovinent discrimination

under 42 U.S.C. 1981 is tolled by filing with the Equal

Employment Opportunity Commission a charge of

unlawful employment practice based upon the same

factual allegations.

STATUTES INVOLVED

Section 1 of the Civil Rights Act of 1866, 14 Stat.

27, as amended, 42 U.S.C. 1981, provides: i

All persons within the jurisdiction Btn.

United States shall have the same right in

every State and Territory to make and enforce

contracts, to sue, be parties, give evidence, and

to the full and equal benefit of all laws and pro-

ceedings for the security of persons and prop-

erty as is enjoyed by white citizens, and shall

be subject to like punishment, pains, penalties,

taxes, licenses, and exactions of every kind, and

to no other.

Section 706 of the Civil Rights Act of 1964, 78 Stat.

259, 42 U.S.C. (1970 ed.) 2000e—5, provided in perti-

nent part:’

? Section 706 was amended, in ways not directly relevant to

this litigation, by Section 4 of the Equal Employment Oppor-

tunity Act of 1972, Pub. L. 92-261, 86 Stat. 104.

a

CAND Bevin a

3

(a) Whenever it is charged in writing under

oath by a person claiming to be aggrieved, or

a written charge has been filed by a member of

the Commission where he has reasonable cause

to believe a violation of this subchapter has

occurred (and such charge sets forth the fxcts

upon which it is based) that an employer, em-

ployment agency, or labor organization has en-

gaged in an unlawful employment practice, the

Commission shall furnish such employer, em-

ployment agency, or labor organization (herein-

after referred to as the “respondent’’?) with a

copy of such charge and shall make an investi-

gation of such charge, provided that such

charge shall not be made public by the Com-

mission. If the Commission shall determine,

after such investigation, that there is reason-

able cause to believe that the charge is true,

the Commission shall endeavor to eliminate any

such alleged unlawful employment practice by

informal methods of conference, conciliation,

and persuasion. * * *

* * * * *

(e) If within thirty days after a charge is

filed with the Commission or within thirty days

after expiration of any period of reference

under subsection (c) of this section (except

that in either case such period may be ex-

tended to not more than sixty days upon a

determination by the Commission that further

efforts to secure voluntary compliance are

warranted), the Commission has been unable

to obtain voluntary compliance with this sub-

chapter, the Commission shall so notify the

person aggrieved and a civil action may,

within thirty days thereafter, be brought

against the respondent named in the charge (1)

ee nce eee en

EO na OR sb i

eiteeneteelamieeienn Gees ee ee eleme ’

4 ’

by the person claiming to be aggrieved, or (2)

if such cliarge was filed by a member of the

Commission, by any person whom the charge

alleges was aggrieved by the alleged unlawful

employment. practice. Upon applieation by the

complainant and in such cireumstanees as the

court may deem just, the court may appoint an

attorney for such complainant and may author-

ize the commencement of the action without the

payment of fees, costs, or security. Upon timely

application, the court may, in its diseretion, per-

mit the Attorney General to intervene in such

civil action if he certifies that the ease is of

general public importance. Upon request, the

court may,\ in its discretion, stay further pro-

ceedings for not more than sixty days pending

the termination of State or loeal proceedings

described in-subsection (b) of this section or

the efforts of the Commission to obtain volun-

tary compliance. ;

;

STATEMENT

In May 1967 petitioner, a black man, filed a charge

with the Equal Employment Opportunity Commission

alleging that his employer, respondent Railway Ex-

press Agency, Inc., discriminated on the basis of race

in its hiring, assignment, training, transfer, and pro-

motion practices, and that respondents Brotherhood of

Railway Clerks Tri-State Local and Brotherhood of

Railway Clerks Lily of the Valley Local maintained

racially segregated local unions, all in violation of

Title VII of the Civil Rights Act of 1964 (Pet. 5-6).

Railway Express terminated petitioner’s employment

the following month (Pet. 6). Petitioner then

PS PII Ms air tat Beste .

a i eg eT a

J

amended his charge to include an allegation of dis-

criminatory discharge (ibid.).

In December 1967 the Commission filed a report

concluding that Railway Express and the local unions

had engaged in discriminatory practices, and in March

1970 the Commission issued a decision finding reason-

able cause to believe petitioner’s charges (ibid.). The

Conmission’s conciliation efforts failed to bring re-

spondents into voluntary compliance with Title VIT,

and in January 1971 the Commission accordingly

issued petitioner notice of his right to institute a civil

action against respondents within 30 days (7bid.).’

Within 30 days of receipt of that notice, petitioner

brought suit against respondents in the United States

District Court for the Western District of Tennessee,

alleging violations of Title VIT and also of 42 U.S.C.

1981, and requesting injunctive relief. Respondents

moved to dismiss and for summary judgment. In June

1971 the district court dismissed the Section 1981

claims against all three respondents, on the ground

that those claims were barred by the one-year Ten-

nessee statute of limitations; the court further granted

the local unions’ motions for summary judgment as

to the Title VII claims against’them on the basis of

stipulated or undisputed facts (Pet. App. la-va). The

nd

pursuant to Rule 54(b), Fed. R. Ciy. P.

~Petitioner’s court-appointed attorney subsequently

withdrew from the case with the permission’ of the

court, and petitioner was allowed 30 days to obtain

* The statute now grants 90 days within which to bring the

action after issuance of the notice. 42 U.S.C. (1970 ed., Supp.

IT) 20000-5(f) (1).

559-S83—74——-2

“AG OA Ae Bt

6 j

, other counsel (Pet. 8). Petitioner was unable to do

, and in February, 1972 the court, W ithout referring

i tw its June 1971 order. entered “judgment ‘dismissing

4 petitioner’s “‘action’’ without prejudice (Pet. App.

ee da-ja). Neither petitioner nor respondents sought

review of the February 1972 order. ee

y | "Petitioner brought thi for injunctive relief

three months later in the same district court, repeat-

ing all the allegations of his initial complaint (App.

i ‘4a-13a). Respondents pleaded the June 1971 order as

; ros judicata and further contended that since Section

4 706 of the Civil Rights Act of 1964 required Title VII

/ claims to be filed within 30 days of the issuance of

4

the notice of right to sue and petitioner had failed

to institute his second action within 30 days of the

dismissal of his first, the district court lacked: juris-

diction over petitioner's reasserted Title VIL claims

(App. 52a-57a, 94a-95a). The district court dismissed

all claims against the local unions on res judicata

grounds (Pet. App. Vay. The court further_held that

the Section 1981 claim against Railway Express was

arved by the one-year statute of limitations (Pet.

\pp. 10a) and that petitioners Tailire to reinstitute

lis civil action within 30 days had deprived the court

if jurisdiction over his Title VIL claims (Pet. App.

WWa-12a).

» The court of appeals, without Addressing 1 respiond-

ent’ s res judicala contentions,’ nee on the grounds

ae he localun

ere as an alternative

(Unions Br. 11-12). We take no position on the aan of that

contention. We note. however! that sine » LL

not decided by the court of appeals, this Court could remand for

consideration of that issue if the tolling question 1s decided In

‘petitionet’s favor. *

ian ite Sa

Ul

‘

SAG RYE PO AEE INI! EIA E BAL RS ROE NG IRE a pet cod Hy Be ee

MM OB AEE Om HN Wms be

7

that petitioner’s Section 1981 claims against all re-

spondents were barred by the statute of limitations

and that the district court had lacked jurisdiction over

petitioner's reasserted Title VIL claims (Pet. App.

13a-2la). 6

In its opinion denying rehearing, the court of ap-

peals specifically rejected petitioner's contention that

the filing of his Title VII charges with the Commis-

sion had tolled the running of the period of limita-

tions with respect to his Section 1981 claims (Pet.

App. 25a-26a). This Court granted the petition for a

writ of certiorari to consider that contention.

INTRODUCTION AND SUMMARY OF ARGUMENT

Petitioner’s Section 1981 claims allege that*respond-

ents committedracially discriminatory acts of a con-

tinuing nature during and prior to June 1967 CApp.

da—Ga). Since the federal s escribes no period

of limitation for such claims, the applicable limitation

period is that which would under state law apply to

Frai fone ’; Saas Ti paar’ zt 9 F, 2d 398

(C.A. 5); Madison v. Wood, 410 F. od 564 (C.A. 6).

Cf. O'Sullivan y. Felix, 233,U.S. 318; Auto Workers

y. Hoosier Corp., 383 U.S. 696, 703-704. Applying that

principle to this case, the. courts helow determined

(Pet. App. 10a, 20a) that the relevant period of limita-

‘tion was the one-year period prescribed by Tenn. Code

Amn, Section 28-304. This Court denied petitioner's

request for review of that determination by limiting

8

the grant of certiorari. Accordingly, unless, as_peti-

tioner contends, the running gf the period of limita-

tion was tolled by the filing of his Title VIT charges

with the Commission, his Section 1981 claims were

barred after June 1968,

* Tolling’ normally has the effect of suspending the

operation of a statute of limitations during the pend-

eney of an event or condition. See American Pipe &

Coustraction Co, v. Utah, 414 U.S. 588, 560-561. Peti-

tioner filed his Title VII charges with the Commission

in Mav 1967 (Pet. 5-6), but he did not receive notice

fof lis right to sue until January 1971 (Pet. 6). If the

“filing of those charges tolled the running of the period

of limitation, petitioner was entitled to bring suit

, under Section 1981 any time prior to January 1972.

\He in fact brought suit in February 1971 _(Pet. 6).

/ Petitioner's initial action was dismissed without

S prejudice in February 1972. (Pet. App. 4a—5a), , by

which time the statute of limitations, even if tolled,

( had_run.'_ However, the ptate-savings statute permits

) actions to he reinstituted within one year of a dis-

>missal without pre ejudice (Tenn. Code Ann., Section

S28 =106), and petitioner’s second civil action was timely

‘under that statute, which presumably governs the

Section 1981 claim, Se See 28 U.S.C. 1652; 42 U.S.C.

. 1988."

i

ma

~S

* Petitioner has suggested (Pet. 11, n. S) that the institution

of the first action. itself tolled the running of the limitation

period as to the second action. However, petitioner did not pre-

sent that question in his petition for a writ of cortiorart and it

is not now before the Court.

* The court of appeals held (Pet. App. 23a-24a) that the state

sivings statute did not apply to petitioner's Title VII — on

Our submission is that the tolling principle is ap-

plicable here. We reach that conclusion by considering

both the congressional purpose behind Title VII and

the policy underlying statutes of limitations. The bur-

den of our argument is that,tolling the time allowed

for filing a Section 1981 suit while the Equal Employ-

ment Opportunity. Commission is attempting to

concihate the dispute (1) serves the congressional

objective of discouraging (without prohibiting) pre-

mature judicial intervention, and (2) does so without

offending the policies underlying statutory limitations

periods. ¢

ARGUMENT

A. THE CONGRESSIONAL PURPOSE IS EFFECTUATED BY PER-

MITTING AN INDIVIDUAL AGGRIEVED BY EMPLOYMENT

DISCRIMINATION TO DELAY BRINGING SUIT UNDER SEC-

TION 1981 UNTIL AFTER ISSUANCE OF THE NOTICE OF

HIS RIGHT TO SUE UNDER TITLE VII :

1. AN INDIVIDUAL AGGRIEVED BY EMPLOYMENT DISCRIMINATION MAY -

——

REASONABLY DESIRE TO ASSERT CLAIMS FOR RELIEF UNDER BOTIT

ee

SECTION 1981 AND TITLE VII

Title VII of the Civil Rights Act of 1964 was enacted

by Congress *‘to assure equality of employment op-

the ground that 42 U.S.C. (1970 ed.) 2000e-5(d), which re-.

quired such claims to be instituted within 30 days of the is-

suance of a notice of right to sue, by necessary implication

required dismissed claims to be reinstituted within 30 days of

dismissal; this Court denied petitioner's request for review of

that determination. But respondents do not contend that the

30-day provision, rather than the state savings statute, applies

to the reinstitution of petitioner's Section 1981 claims. See .Woove

v. Fields, 464 F. 2d 549 (CLA. 6). Respondents rest their case on

res judicata (see note 3, swpra) and the untimeliness of the orig-

inal action. .

BRizerscantstcsticns ndisitheSadtcinte te

10

portunities by eliminating those practices and devices

that discriminate on the basis of race, color, religion,

sex, or national origin.” Alerander v. Gardner-Denver

Co., 415 U.S. 36, 44. Title VII both creates statutory

rights against invidious discrimination and establishes

a comprehensive scheme for the vindication of those

rights.

An individual aggrieved by employment discrimina-

tion is entitled under Title VIT to bring charges of

unfair employment practice to the Equal Employment

Opportunity Commission, which is vested with the

‘authority to investigate indiyidual charges of dis-

crimination, to promote voluntary compliance with

the requirements of Title VII, and to institute civil

actions against employers or unions named in a dis-

crimination charge.” Ibid. If the Cornmission fails to

obtain voluntary compliance and decides not to bring

suit_on behalf of the claimant, the claimant may do

so himself. McDonnell Douglas Corp. v. Green, 411

U.S. 792. The federal district courts are empowered to

appoint counsel for plaintiffs alleging discrimination,

authorize the commencement of the action without the

payment of fees, costs, or security, and grant at-

torneys’ fees in meritorious cases. 42 U.S.C. (1970 ed.,

Supp. IL) 2000e-5(e) and (k), Where unlawful dis-

crimination is proyen, the courts may award back pay

and “order such affirmative action as may be appro-

priate.” 42 U.S.C. (1970 ed., Supp. TL) 2000e—5(¢).

Back pay may not, however, be awarded for a period

more than two years prior to the filing of charges

with the Commission. bid. Several courts have also

concluded that neither compensatory nor punitive

.

29 el BONS NE Lae ETE ay A tetas AP

11

damages are available under Title VII. See, e.y., Loo

v. Gerarge, 374 F. Supp. 1338 (D. Ha.); Howard vy.

Lockheed-Georgia Co., 372 , Supp. 854 (N.D. Ga.) :

Van Hoomissen vy. Xerox Corporation, 368 F. Supp.

829 (N.D. Cal.). But see Stamps v. Detroit Edison

Co., 365 F. Supp. 87 (B.D. Mich.), appeal pending:

Humphrey v. Southwestern Portland Cement Co, 369

F. Supp. 832 (W.D. Tex.), reversed on other grounds,

488 F. 2d 691 (C.A. 5). .

Although Title VIT was designed as a compre-

hensive solution to the problem of invidious a

ment ‘ieuitinination Mcatctas intended individuals

agerieved by such discrimination to have available

parallel or overlapping remedies; such individuals are

not limited to seeking relief only under Title VIT.

“[T]he legislative history of Tithe VIT manifests a

congressional intent _to allow_an individual to pursue

independently his rights under both Title VII and

other applicable state and federal statutes."’ Ale.r-

ander Vv. Gardner-Denver Co., supra, 415 U.S. at 48.

In particular, Congress understood “that the remedies

available to the individual under Title VII are co-

extensive with the individual’s right to sue under the

provisions of the Civil Rights Act of 1866, 2 TSC.

§ 1981, and that_the two procedures_augment cach

other and are not mutually exclusive’ H. Rep. Nov

238, 92d Cong., Ist Sess., p. 19. See also S. Rep.

415, 92d Cong., Ist Sess. p. 24. Indeed, sin_con

sidering the Equal Employment Opportunity Act of

1972 the Senate specific amendmen

that would have deprived employees aggrieved by

racial discrimination of their right to sue under Nee

tion 1981. fee 11S Tong. Ree. 3371-3373 (1972). Co

i ES Bad ote Spo 2h:

~enlaes

Mein ty ad Ee touter

a

ection ctor ncinntiiais eee Fal Dart A at BL

en mR aot ois Me ES

12

gress therefore clearly intended that such employees

should be permitted to pursue their rights under both

Title VII and Section 1981. Cf. Jones vy. Alfred

Mayer Co., 392 US. 409, 413-417.

Section 1981 grants to all persons the right to be

free of racial discrimination in the making and en-

forcement of contracts. Individuals who establish a

causé of action under Section 1981 are entitled to both

legal and equitable relief, including compensatory and,

in some circumstances, punitive damages. See, e.9.,

Capere Vv. Huntoon, 397 F. 2d 799 (C.A. 1), certiorari

denied, 393 U.S. 940; Mansell v. Saunders, 372 F. 2d

573 (C.A. 5). Cf. Jones v. Alfred Muyer Co., supra,

392 U.S. at 414-415, n. 14. An award of compensatory

® Though this Court has never expressly held that Section 1981

bars private contractual discrimination, Jones vy. Alfred Mayer

Co., 1o.. supra, 392 U.S. at 413, held that Section 1982, the related

provision barring housing discrimination, prohibits “a/7 racial

discrimination, private as well as public.” and intimated that See-

tion 1981 has a like coverage. See 392 U.S. at 441-445, n. 78. Apply-

ing the reasoning of that decision. the courts of appeals have

inanimously conchiled that Section 1981 derived like Section

1982 from Section 1 of the Civil Rights Act of 1866, prohibits

mployment discrimination on the basis of race. See, ¢.y.. Jackson

Vv. Statler Foundation, 496 F. 2d 623 (CLA. 2): Young v. Luter-

national Sees amie! & Telegraph Co, 438 F.2d TAT (CLA. 3);

Brown v. Gaston County Dyeing Machine Co. 457 F.2d 1377

(C.A. 4), certiorari denied, 409 U.S. 982: Caldwell v. Vational

Brewing Co., 443 F, 2d 1044 (CLA. 5), certiorari denied. 405 U.S.

916; Long v. Ford Motor Co., 496 F. 2d 500 (CLA. 6): Waters v.

Wisconsin Steel Works of Lute rnational Tarrester Co.. 427 F.2d

476 (CLA. 7), certiorag®denied, 400 U.S. 911; Brady v. Pristol-

Meyers, Inc.. 459 F. 24621 (CLA. 8): Macklin ve Spector Freight

79 (CLA.D.C.). Respondents do not chal-

Nystems, Ine. 478 FL 2b

(vege those decisions hére, and therefore the question of the scope

f Section 1981 is not before the Court. .

we 00 a 8 AAT IRB ES AS Na A RR ht REA SEND Sl ORE EST a

13

back pay under Section 1981 is not subject to the two-

year limitation _imposed_upon recoveries under Title

VIL.

Section 1981 and Title VII are not coextensive in

their coverage. Certain employers are excluded from

the coverage of Title VIT. See 42 U.S.C. 2000e(b).

Section 1981 contains no express exclusions. Title VIT

apphes only to employment relationships; Section 1981

protects all contractual relationships. On the other

hand, Title VII expressly bars discrimination on the

basis of sex, religion, and national origin, whereas

some courts have concluded that the prohibitions of

Section 1981 do not extend to all those forms OF dis-

crimination. See, e.g., Willingham v. Macon Telephone

Publishing Co., 482 F. 2d 535 (C.A. 5), rehearing

en-bane granted, 482 F, 2d 542. But see Guerra v.

Manchester Terminal Corp., No. 73-1907 (C.A. 5),

decided July 31, 1974; Baker v. Chicago, Fire and

Burglary Detection, Inc., 489 F. 2d 953 (CLA. 7).

Cf. Pierce v. United States, 146 F. 2d 84 (C.A. 5).

Title VII also offers the aggrieved individual special

assistance—e.g., investigations, conciliation machinery,

legal counsel, waiver of court costs, and attorneys’

fees—umavailable under Section 1981 or indie

viduals alleging that employers covere by Title VIT¢

have ,discriminated against them on the basis of race,

the sundstantive protections of- the two statutes are

quite-simtar: Tingpal rethedial difference is tha

umniple back ay may |

This difference ma

punitive damages and more

awarded under Section 198

SOE RES OE NAR RREERONEG GR BH. 2 vce

Saas gi eit Set earls sea San SNR Or

Pret

(14

however, in some instances be of substantial impor-

stance. Thus, where the aggrieved individual has appar-

' ently valid claims for back pay for a period,more than

_ two years prior to the filing of charges with the Com-

mission or presents a case arguably appropriate for

the award of punitive damages, he may reasonably de-

sire to bring suit under Section 1981 as well as Title

Vil.

CONGRESS DID NOT INTEND TO COMPEL AN AGGRIEVED INDIVIDUAL

TO SUE UNDER SECTION i981 PRIOR TO COMPLETION OF THE COM-

MISSION ’S EFFORTS TO OBTAIN VOLUNTARY COMPLIANCE

The legislative history referred to above (pp. 11-12,

ipra) shows aycongressional intent that Section 1981

rights be immediately enforceable m court without

prior resort to the administrative machinery estab-

ished under Title VII.;As Senator Clark, one of the

leading proponents of the bill, explained to his col-

leagues, “[T]itle VII is not intended to and does not

deny to any individual, rights and remedies which he

may pursue under other Federal and State statutes.”

110 Cong. Rec. 7207 (1964). Cf. Sullivan v. Little

Hunting Park, Inc., 396 U.S. 229. The courts of

appeals have generally understood that the filing of

Title VII charges is not a prerequisite to the initiation

of an action under Section 1981. See Young v. Inter-

national Telephone & Telegraph Co., supra; Caldwell

v. National Bhewing Co., supra; Long v. Ford Motor

Coy supra, Contra : Waters v. Wisconsin Steel Works

of I nternationul Harvester Co., supra. This approach

eens 0 PRO RI et A

Fe es

15

merely gives qlue recognition to the fact that Congress

intended independent rights to be independently en- >.

forceablesSee generally Alerander v. Gardner-Denvef

Co., supras

By the same token, however, Congress intended that

judicial protection against employment discrimina-

tion normally would be invoked only upon the com

pletion of the Commission’s efforts i¢ obtain voluntary

comphance with Title VIT. It was hoped that th

elimination of employment discrimination on accoun

of race would be achieved primarily through con

ciliation and persuasion, The premature initiation of

private suits may in many. instances frustrate that

hope by interfering with the Commission’s concili-

ation efforts. If, for example, the litigation fails fe

one reason or another, whether or not related to the

merits, that would seriously weaken the Commission's

ability to induce voluntary compliance. But even it

the private plaintiff sueceeds in obtaining full relicf

from discrimination against himself, final disposition

"We note that Title VIL itself éontemplates that some private -

suits for enforcement of Title Vil rights may be brought while ¢

charges are still pending before the Commission. Thus Title VIT" »

claimants may in some instances be entitled to preliminary injune-

tive relief before the Commission takes any action with respect to

their charges. Drew v. Liberty Mutual Insurance Co,, 480 F. 2a

69 (CLA, 5), certiorari denied, June 3, 1974, No. 73-312. Such

claimants are also entitled to bring suit for back pay and per-

manent injunctive relief if the Comntission does not obtain vol-

untary compliance within 180 days, even if conciliation efforts

have not yet begun or are still under way. 42 U.S.C. (1970 ed..

Supp. IT) 2000e-5(f).

owhwe sales MEY 0g

ALAR BA Ord Wheto

Bistair tatccceics.nin

16

of the individual cause of action could tend to reduce

the employer’s incentive for voluntarily entering a

more general conciliation agreement covering all em-

Tovees and all forms of discriminationZlo compel an

aggrieved individual to sue under Section 1981 prior

to completion of the Cominission’s efforts to obtain

voluntary compliance would undercut Title VII's

emphasis on conciliation, persuasion, and voluntary

complianee.® ;

That is the effect of the holding below. State limita-

tion periods for Section 1981 claims frequently are,

as is true here, quite short. See, e.g., Henderson v.

First National Bank of Montgomery, 344 F. Supp.

1373 (M.D. Ala.). Because of its Invge backlog of cases

and limited budget, the Commission often is unable to

initiate compliance’ efforts within those limitation pe-

riods. See Chromeraft Corp. v. Equal Employment

Opportunity Commission, 465 1b. 2d 745 (CLA. 5). Ae-

ordinglyAinless the runing of the limitation period

for tiling Section 1981 claims is tolled during the pend-

ency of unlawful employment practice charges before

C “it would be CHpproprinkto require the aggrieved’ individ-

uzl to bring suit under Section 1981 prior to completion of

conciliation efforts but then tg stay or delay proceedings until

the Commission acts. Such a_requirement would simply create

“na_procedural trap for the unwary and an additional complica-

tion for those who manage the dockets of the courts.” Crown

“(Gal Front Co.. Ine. v. United States. 386 U.S. 503, 515.

OO AIEEE TR ITE ALE ARENAS SH

pet

“=

17

1981, and thereby risk disruption of conciliation

efforts, or to forego their rights under that statute,

There 1s no basis in either Section 1981 or Title

VII, or their respective legislative histories, for im-

posing such a Hobson's choice. Title VII's policy in

favor of the voluntary resolution of employment dis-

crimination claims should he accommodated hy tolling

the running of the limitation period applicable to

Section 1981 claims during the pendency of charges

hefore the Commission."® |

* Respondent Railway Express contends (Railway Express

Br. 7) that this case should be governed by the state tolling

statute rather than by federal equitable tolling principles. But it i

well settled that when federal courts sit to enforce federal wehts

they have a duty to apply federal equity principles: “[w]her

Congress leaves to the federal courts the formulation of reme-

dial details, it can hardly expect them to break with historic

principles of equity in the enforcement of federally-created

equitable rights.” Tolmberg v. Armbrecht, 327 U.S. 392. 395. See

also Moviecolor Limited v. Eastman Kodak Com pany, 2588 F.2d

80 (CLA. 2). certiorari denied. 368 U.S. 821.

* To be sure, it is arguable that the policy of encouraging

conciliation aid deferring judicial intervention until the media-

tion_efforts of the Commission have failed could be served by

merely extending the limitati riod for bringing suit under

_ Section 1981, to the last date on which suit may be brought

under Title VII. Cf. McAllister v. Magnolia Petroleum Co.. 357

U.S. 221. The result here would presumably be that petitioner's

second suit would be barred as to the Section 1981 claim for the

same reason that the Title VII claim was held out of time—

that the state savings statute is inapplicable. See note 5, supra.

In our view, however, there_is no reason. in this context, to de-

part from the normal rule, which is that “tolling” entails a

suspension of the period of limitation, thereby allowing the plain-

tiff whatever time remains under the applicable state statute, as

well as the benefit of any savings statute.

= pe Nene CRE. GA

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NOAA at DAIL AAD AN LOE PELE Va HI GMO GAA Tele at 8

18

HE RUNNING OF THE LIMITATION PERIOD FOR BRING- °

NG SUIT UNDER SECTION 1981 WOULD SERVE NO PUR-

POSE DURING THE PENDENCY OF TIMELY TITLE VII

‘HARGES BASED UPON THE SAME FACTUAL ALLEGATIONS

The policies underlying statutory limitation periods

would not be served by barring suits under Section 1981

for racially discriminatory employment pactices while

charges based upon the same factual allegations are

still ii before the Commission. The purpose of

a statute of limitation is tg protect defendants against

the prejudice and unfair surprise that may attend the

revival of stale claims.>As this Court explained in

Order of Railroad Telegraphers v. Railway Express

Agency, Ine., 321 U.S, 342, 348-349:

Statutes of limitation * * * are designed to

promote justice by preventing surprises through

the revival of claims that have been allowed to

slumber until evidence has been lost, memories

have faded, and witnesses have disappeared.

The theory is that even if one has a just claim

it is unjust not to put the adversary on notice

to defend within the period of limitation and

that the right to be free of stale claims in time

comes to prevail over the right to prosecute

them.

*

These equitable considerations are not present when

the plaintiff in an action under Section 1981 has pre-

viously filed timely Title VIZ charges based upon the

same factual allegations. Such charges are required

to be filed promptly, ordinarily within 180 days of the

alleged discriminatory acts. 42 U.S.C. (1970 ed., Supp.

IT) 2000e-5(¢).<The_Commission_in_turn_is_requjred

A BD EA SCL, 0, YON ah SPIELE N ONE LS Liat VAD BEANO EATEN tO SO MPO os

wi

19

to provide the employer with notice of the charges

within 10 days after the date of filing 42 U.S.C. (1976

ed., Supp. IL) 2000e-5(b). And the Commission’s reg-

ulations provide ‘that ‘‘the respondent employer shall

preserve all personnel records relevant to the charge

* * * until [its] final disposition * * *.” 29 C.F.R.

1602.14(a). Thus the filing of timely Title VII charge$

promptly puts the employer on notice of a clair of

unlawtul discrimination arid ensures that the employer

will preserve all relevant evidence and thus substan

tially protect himself against the prejudice that migh

otherwise be suffered over the course of time.

“Where a defendant is neither SUTprised 1 nor prej-

udiced by delay in the institution of a civil action,

the operation of a time bar acts merely as an arbitrary ‘3

rule of convenience that serves no equitable purpose,

Indeed, equitable considerations may be said to weigh

in favor of a plaintiff who has made timely assertion

of his rights in a manner that puts the defendant on

notice and allows him to protect himself against prej-

udice.” This Court acknowledged the force of suc

equitable considerations in American Pipe d& Cons

struction Co. v. Utah, supra, and Burnett v. Naw

York Central R: Co., 380 U.S. 424. In American

Pipe, the Court held “that the initiation of a timely

class action tolled the running of the limitation period~

-™ Those equitable considerations presumably underlie state

savings statutes, such as Tenn. Code Ann., Section 28-106, that

permit an action to be reinstituted following a dismissal without

prejudice after the limitation period has run. Where such

statutes preserve the plaintiff's interests, recourse to the judi-

ciary’s equitable power to toll the running of the limitation

period is unnecessary. But see note 12, infra.

20

as to individual membersof the class, who were

thereby enabled to institute separate actions after the

district court held that the suit was igappropriate as a

Class action. Similarly, iC Burnett Dre initiation of a

aicly Federal Employers” Tiability Act suit in state

out was held to have tolled the runying of the limi-

ation period with respect to a later suit brought in

‘ederal court_after the state proceeding had heey dis-

missed for improper venue,*

This case admittedly(difter® from American Pipe

fe Burnett in thatthe right asserted by petitioner

before the Commission had a different statutory origin

from the one he is now attempting to vindicate. But

the fact that the plaintiffs were in each case werely

reasserting a single statutory right f

&

: Was not critical to the Court’s analysis in American

\\ Pipe and Burnett; the Court’s decisions in those cases

| rested upon its conclusion that each plaintiff had_ by

a

4

his prior action given the ant timely notice in

a manner that “fulfilled the policies of-repose and cer-

tainty imbherent i ation previsions and

es

\telled the running of. the period.”” .imerican Pipe

& Construction Co. vy. Utah, supra, 414 U.S. at

: 558. When the right first asserted has a different

: statutory origin from that which forms the basis for

a subsequent request for relief, the question under

. . —_—_—_—_—_

American Pipe and Burnett would appear to be

} whether the two distinct statutory rights are essen-

This Court concluded that an equitable tolling principle,

rather than the state savings statute, should control the time-

liness of the second action in Burnett, in order that the federal

statute of limitation for FELA suits would operate uniformly

throughout the nation. 380 U.S. at 434-436.

PONE AEROSOLES EA wy

Cie D8 tr wey Att

21

tially equivalent in substance, so that a claim_under

one rests upon the same “fac ‘ts as, and gives notice of

the Basen arr of, a claim under the other. See I Berry v.

Pacific S sportfishing, Inc., 372 F. 2d 213 (C.A. 9),

certiorari denied, 389 U.S. 821 (holding that the run-

ning of the three-year limitation period under the

Jones Act is tolled during the pendency of a state

wrongful death action). See also Sanchez v. Trans

World Airlines, Inc., 499 F. 2d 1107 (C.A. 10);

Moore v. Sunbeam Corp., 459 F. 2d 811 (C.A. 7);

Malone vy. North American Rockwell Corp., 457 F. 2d

779 (C.A. 9); and Culpepper v. Reynolds Metals Co.,

421 F. 2d 888 (C.A. 5) (all holding that resort to the

grievance-arbitration provisions of a collective bar-

gaining agreement tolls the running of the limitation

axial ther. Title =

As we have shown above (pp. 9-14, supra), claims

of racially discriminatory employment practices under

Section 1981 and Title VII are essentially equivalent

in substance. The filing of petitioner 's charges under

Title VII clearly put responderts on notice that_peti- peti-

tioner also had a grievance under Section 1981. Ac-

——_,

cordingly, that filing, like the initial Jawsuits in

American Pipe and Burnett, “fulfilled the policies

of repose and certainty inh imitation pro-

visions and tolled the running of the period.’ Amerij

can Pipe & Construction Co. vy. Utah, supra.’

These considerations led two other courts of appeals

in earlier cases to conclude that the filing of Title VII

. charges of unlawful employment practices with the

Commission tolls the running of the limitation period

with respect to Section 1981 suits based upon the same

—~—/

22

actual allegations. Macklin v. Spector Freight Sys-

tems, Inc., supra, 478 F. 2d at 9945, n. 30; Boudreaur

v. Baton Rouge Marine Contracting Co., 437 F. 2d

\1011, 1017, n. 16 (C.A. 5). The court of appeals below

erred in not following those decisions.

CONCLUSION

The court of appeals erred in holding that the

filing of timely Title VII ciiarges of unlawful em-

ployment practices with the Equal Employment Op-

portunity Commission does not toll the running of the

limitation period with respect to Section 1981 suits

based upon the same factual allegations.

Respectfully submitted.

Rospert H. Bork,

Solicitor General.

J. StanLEY PorrTincer,

Assistant Attorney General.

KEITH A. JONES,

Assistant to the Solicitor General.

Davip L. Ross,

MicHaEL A. MIDDLETON,

Attorneys.

WitiramM A. Carey,

General Counsel,

JosEPH T. EDpINs,

Associate General Counsel,

CHARLES L. RIESCHEL,

CHARLES 8. P. Hobce,

Attorneys,

Equal Employment Opportunity Commission.

OcTOBER 1974.

U.S. GOVERNMENT PRINTING OFFICE: 1976

@