# Amicus Curiae Brief — Johnson v. Railway Express Agency, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0413%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 421 U.S. 454 ## Text 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 italy eek cet ee A aad tee Stak. ees tee —— 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(¢).