Amicus Curiae Brief — Albemarle Paper Co. v. Moody

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TABLE OF CONTENTS

MOTION OF THE LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW FOR LEAVE TO FILE A

ge a) a rr ee I

INTEREST-OP AMICUS CURIAE ;.......2000:..+-:

STATEMENT OF THE CASE............... ee 4

ON EEIEES LEI OD 5

ARGUMENT

l. ‘This Case Involves Public Policies of the

ES a ee ee ee ae 6

II. Even if Congress had been Silent on the

Question of Remedies, Well-established

Principles Require That the Victims Of

Employment Discrimination be Restored

to the Position They Would Have Occu- r

pied had the Wrong not been Committed. .......... 8

A. Equitable Discretion Must be Affirma-

tively Exercised to Provide Complete Relief

for Weomes Committed. .....02 cece ec recvees R

B. The “Complete Justice’ Principle is

Equally Applicable in Race Discrimina-

i as eS FA obs ees bee eeeese 13

Ill. Neither the Language nor the sackground

of the Statute Support an Inference that

Congress Intended to Provide Title VII

Plaintiffs with Less Than a Full Measure

pw ie eke EN ok co be tp te gore 18

IV. Back Pay is Essential to Effective Enforee-

ment of Tithe VIL: the Special Circum-

stances Which Might Justify More | united

Relief Must be Narrowly Curcursermeerd 2... =

NIE ee ie ei des as

(ii)

TABLE OF AUTHORITIES

Cases:

Bell v. Hood, $27 U.S. 678 (1946) ......... 0... cee eee 9

Bemis Bros. Bag Co. v. United States, 289 U.S.

EE: SAC BAK ESO SAA SAAS ence w es 0 13, 24

Bigelow v. RKO Radio Pictures, 327 U.S. 251

ig AEE EES ES CREE EE OER EET S ET eee Ter Tree 12

Bivens v. Six Unknown Named Agents, 403 U.S.

od cei, EEE PEERT See OTT CC ERATE ETE 9

Bowe v. Co!gate-Palmolive Cogr416 F.2d 711

ee PE ee ee eee eee ee 19, 21, 22

Bradley v. School Bd. of City of Richmond, 416

Ses ND REE A 0d 0h A 8 4 ON 8s 16

Brown v. Board of Educ., 347 U.S. 483 (1954) .......... 6

Brown v. Swann, 10 Pet. (U.S.) 497 (1836).......... 13, 26

Carr v. Conoco Plastics, 423 F.2d 57 (5th Cir. me’

1970) cert. denied, 400 U.S. 951 (1970)............. 2

Columbia Nastic & Carter Claibone v. Columbia

R. & C. Mfg. Co., 367 F.2d 308 (2d Cir. 1966)....... 24

Consolo v. Federal Maritime Comm’n, 383 U.S.

ef | MES See eee erree vere oe a

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

Cee Ga SON Wk 6s we a pire a Vi 8 oa 0c ere ees 7, 21

Davis v. Board of School Comm'rs, 402 U.S. 33

oo Serer or ra ores. are) eee ae aera ee 14

Duhon v. Goodyear Tire & Rubber Co., 494 F.2d

EF COU Ge, ROT sik ove ks eee eee eS Ree ewes 21

' Douglas v. Hampton, _—. F.2d____, No. 72-1376

Cee Ge SU Bly BOT OE 65 6 ee eh ek secs es wasenes 2

Edward B. Marks Music Corp. v. Charles K. Harris

Music Pub. Co., 255 F.2d 518 (3d Cir. 1958) ........ 24

Ford Motor Co. v. United States, 405 U.S. 562

(itz)

Cases, continued: Pig

Golden State Bottling Co. v. NLRB, 414 U.S. 160

ER 6S hic beak Ohana sic ad eau bs aeaces 20

Green v. County School Bd., 391 U.S. 430 (1968) ....... 14

Griggs v. Duke Power Co., 401 U.S. 424 (1971,...... 2, 6, 23 -

Head v. Timken Roller Bearing Co., 486 F.2d 879

(Gth Cir. OTS). cece wer cece senses 20

Heart of Atlanta Motel v. United States, 379 U.S.

a eo Ore ee a ena 6

Hecht Co. v. Bowles, 321 U.S. $21 (1944) .. 0.2.0... 10, 12

International Salt Co. v. United States, 332 U.S.

Oe eet is AK a Oe BONN AW Ke Tew ass ode Car 11

, J-I. Case Co. v. Borak, 377 U.S. 426 i ar 9, 10, 12

Johnson v. Georgia Highway Express Co., 417 F.2d

1122 (5th Cir. 1969)... 2.2.2... 0.0.0.0... 00 ........ 21

Johnson v. Goodyear Tire & Rubber Co., 491 F.2d

ESGO4 (Sth Cir. 107K) 0 cw le ee wc cee 21

Jones v. Alfred H. Mayer Co., 392 U.S. 409

ccna Re an a a 6, 14, 15

Kansas City - St. Louis & C.R. Co. v. Alton R.

Co., 124 F.2d 780 (7th Cir. 1941)... ........002.... ot

Kober v. Westinghouse, 480 F.2d 240 (3d Cir. 1973) ..... 23

Langnes v. Green, 282 U.S. 531 (1931) 2... ..0.0..... 12

LeBlanc v. Southern Bell Co., 460 F.2d 1228 (5th

Cir. 1972), cert. denied, 409 U.S. 990 (1972)... 22... =o

Louisiana v. United States, 380 U.S. 145 (1965) .. 2.2.00. 15

Manning v. General Motors Co., 466 F.2d 812

ete i Le | cr |

Marbury v. Madison, 1 Cranch (U.S.) 137 (1803). 2... 20.00. S

Mc Donnell- Douglas Corp. #2 Green, 11 U.S. 792

GE AEN ae Sew ew 8 eA rk ec ew ew bo 0

Meadows v. Ford Motor Co., — F.2d __ , 9 FEP

Cases 180 (6th Cir. 1975)... 00000002000 ee. 20, 21

— Ee ELT TTD Ee ETT ATER nr ENR 2 AARNE KS APOE WL Re

(tv) *~,

Cases, continued: . Page

Mitchell v. DeMario Jewelry, 361 U.S. 288

to) Pere er eee ee ee ee ee ae 9, 10, 11, 12, 20

Moragne v. States Marine Lines, 398 U.S. 375

SIBTED .. 0 c0s CaN aU ew ek eee ee sen ten esse 9, 17, 21

Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974), |

cert. dented, —_. U.S. __, (1974)... ..............- 2

Nathanson v. NLRB, ’344 U.S. 25 (1952) ............. 20

Newman v. Piggie Park Enterprises, 390 U.S. 400

iL PEPOCEREAER CEEOL TRESS EET Tee 15

NLRB v. H.N. Thayer Corp., 213 F.2d 748 (1st

Cir. 1954), cert. denied, 348 U.S. 883 (1954) ...... .. 19

NLRB v. Mastro Plastics Corp., 354 F.2d 170 (2d

Cir. 1965), cert. denied, 384 U.S. 972 (1966) ...... 19, 20

NLRB v. Rutter Rex Mfg. Co., 396 U.S. 258

fe POV ETT RT TTC TC TIL aT eT TURTLE 20, 25

Northcross v. Board of Educ., 412 U.S. 426

CRT 6 6 ck nn sie S64 ie 0 aS e eee 8 48s sew ee 0s 16

Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th j

Se PCT TT eTESTT ICSI TT ee CTT eT 22

Palmer v. Thompson, 403 U.S. 217 (1971) ............ 24

Pennsylvania Greyhound Lines, Inc., 1 NLRB 1

(1935) enf’d. sub. nom, NLRB v. Pennsylvania 4 1

Greyhound Lines, Inc., 303 U.S. 261 (1938)....... 19, 20

Pettway v. American Cast Iron Pipe Co., 494 F.2d

BER WPM Ge. BGP nw cc Sb wesc cc ec ccc ecess 21

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941) ....19, 20 & i

Porter v. Warner Holding Co., $28 U.S. 395

(BOGE) www cere c ccc ccen cece cses 9, 10, 12, 13, 17

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

ROPE) nc cS occ 8c bree se ee ccc evoseseeweess 19, 20

Sanchez v. Standard Brands, Inc., 431 F.2d 455

(Sth Cir. 1970)... ce ecw eee cee eee eee ecee

(?)

Cases, continued: . Faue

Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d

1002 (9th Cir. 1972)... 0.000 000200........... 23

Shultz v. Mistletoe Express Service, Inc., 434 F.2d

1267 (10th Cir. 1970) ........020220..0......... 20

Shultz v. Parke, 413 F.2d 1364 (5th Cir, 1969)... ...... 20

South Carolina v. Katzenbach, 383 U.S. 301 (1966)... 2... 6

Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192

OURO) ook 6 os Ws oes oo ao ew ee eecenn 10, 13

Story Parchment Co. v. Paterson Parchment Paper

Co., 282 U.S. 555 (1931). .....000.20.20.......... 12

Sullivan v. Little Hunting Park, 396 U.S. 229 (1969)...... 15

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402

US.1 (1971)... 0.0... 200... 00.0.0... . 000068 14

Textile Workers Union v. Lincoln Mills, 353 U.S. 448

(1957)... ccc cc chee cece ree ee ee 9,10

Tunstall v. Brotherhood of Locomotive Firemen, 323

U.S. 210 (1944)... eee. 10, 13

United States v. DuPont & Co., 366 U.S. 316

RDG) in ok 5 ann oe a cba che kn ie ews wane ie 11

United States v. Georgia Power Co., 474 F.2d

906 (5th Cir. 1973)..... 20.2... 000 00......0.... 21

United States v. Masonry Contractors, 494 F.2d 870

(6th Cir. 1974)... 2. eee. 21

United States v. Morgan, 307 U.S. 183 (1939)... ....2. 8, 10

United States v. United States Gypsum, 340 U.S. 76

(WDB). ee eee e ree at ce eenecasccce. 11

Virginian Ry. Co. v. System Federation No. 40, 300

U.S. 515 (1937) 2... 9,10

Watson v. City of Memphis, 373 U.S. 5°6 ih) ear 6, 23

White v. Regester, 412 U.S. 755 iL) Bn 6

Wicker v. Hoppock, 6 Wall. (U.S.) 94 (ISO7).000°¢«CF Fd, 13

AERA ELLIE Gs ESE OS DTM

(vt)

Cases, continued: Page

Wirtz v. Atlas Roofing Mfg. Co., 377 F.2d 112 (5th

Gi. T9BT). 6c ws wwevcs ‘ead oeee we oan miasaeas 20

Wirtz v. Malthor, Inc., 391 F.2d 1 (9th

te SOM 5 6 es CaS ees RES SE eed Ee KOE EES 20

Wright v. Council of City of Emporia, 407 US. 451

CUI os oe 6554 5k oes eee ees ese eee cess 14, 23

Young v. International Telephone & Telegraph Co.,

S56 F.2d 787 (30 Ge: 1071). 66k wc veined tecen ds 2

Statutes and Regulations:

20 USS, 160i cs oe eee teh 5448s Oe ee Ee OSS 19

BO USE, B80 oy 5546440 4s ONES 8A E oO eS ,.. 20

BO UB. GUO 6s kc cae s pee eh sees seas cee sss 16

SP UBS. SE197) OF 006 og ous oc 00 is 60h 9046 664 e 6

AP USL. BIGGS 66s kee ee es ck sco d es eeecennss es 15

~ 42 USC. $1988... ccc cc ccc ccc cece esc ees 15

42 USC. S2OOOa-BlD) 6.5. csc ce sve veces cescegs 6, 15

42 U.S.C. §§ 2000 et seg .. 2... ee ee ee eee 2, 6

42 U.S.C. §2000e-5(g) .. ee cece ee cece 3, 4, 5, 18

42 U.S.C. §2000e-12(b)............-. sees eresyes 23

42 US.C. § 83601 ef seg 2... cw ce ccc ew cece eee 6

Ped. &. TW; F. 28, BR oo 6 ek heh os a Xe ee ees 21, 24

Supreme Court Rule 42(2) ... ptt tte eee ee eee ees 1

Congressional Authorities:

~146-Cong. Rec. 7168 (1972)... 2. we ccc w ec cer ces 19

113 Cong. Rec. 2298-2302, 1861-1864............4.. 19

110 Cong. Rec. 7212-15, 6549 (1964) TeTtrr reer rT eT 19

Legislative History of the Equal Employment

Opportunity Act of 1972, 92d Cong., 2d

Sess. at 1406, 1407 (Comm. Print. 1972) .......... « 2

(vit)

. . a : Page

Congressional Authonities, continued: il

Minimum Wage and Maximum Hours Standards

Under the Fair Labor Standards Act, U.S.

Dept. of Labor Employment Standards Admin-

istration, An Economics Effect Study Submitted

to Congress, 13-14 (1975)...

Hearings on H.R. 15826 before Subcommittee on

Equal Opportunities of the House Committee

on Education and Labor, 93d Cong., 2d Sess.,

at 279, 290 (1975) .......... 255

Other Authorities:

1 Pomeroy, Equity Jurisprudence §62 (3d ed. 1905)...... 8

F. Maitland, Equity Vol. 1-11 (2d ed. BIO) spas ae 65 dee 8

LLG ERE LENE RT NEES ESE SRT PILL EEL IGRI ELE. TRE ARE “Agnes yer

&

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-389

ALBEMARLE PAPER COMPANY, ct al.,

Petitioners,

v.

JOSEPH P. Moony, et al.,

_ Respondents.

No. 74-428

HALIFAX LOCAL No. 425,

UNITED PAPERMAKERS AND PAPERWORKERS, AFL-CIO,

Petitioners,

v.

JOSEPH P. Moopy, et al.,

Responden:s.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

MOTION OF THE LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW FOR LEAVE

TO FILE A BRIEF AS AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law

hereby moves, pursuant to Rule 42(2) of the Rules of

this Court, for leave to file the attached brief as amicus

curtac. The petitioners have refused their consent. to

the filing of this brief. Respondents have consented to

its filing:

As more fully set forth in the brief (at 2, infra), the

Committee has entered into a contract with the Equal

Employment Opportunity Commission, under which the

Committee is responsible for providing legal services to

those who seek relief from employment discrimination.

Moreover, the Committee is otherwise significantly in-

volved in the national effort to eliminate discrimination

and its effects from public and private employment. The

questions presented in this case as to the appropriate

standards for awarding back pay under Title VII of the

Civil Rights Act of 1964 are of immediate and vital

concern to the Committee and those to whom it pro-

vides legal assistance. The positions taken by petition-

ers involve remedial policies of general applicability to

civil rights litigation. The implications of those posi-

tions may not be fully briefed by the immediate liti-

gants, and yet may have direct and important conse-

quences for the disposition of numerous other cases.

Respectfully submitted,

RICHARD F. BABCOCK

WILLIAM H. BROWN, III

LLoypD N. CUTLER

ERWIN D. GRISWOLD

Lawyers Committee For

Civil Rights Under Law

‘\ J. HAROLD FLANNERY

‘Pau. R. DIMOND

WILLIAM E, CALDWELL

LINDA E. PERLE

ROBERT B. WALLACE

520 Woodward Building

Washington, D.C. 20005

Attorneys for Amicus Curwe.

sed

it Maat

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-389

ALBEMARLE PAPER COMPANY, €t al.,

Petitioners,

v.

JoserH P. Moopy, et al.,

Respondents.

No. 74-428

HALIFAX LOCAL No. 425,

UNITED PAPERMAKERS AND PAPERWORKERS, AFL-CIO,

Petitioners,

v.

JOSEPH P. Moopy, et al.,

Respondents.

ON WRIT OF CERTIORARJ TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF THE LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE

INTEREST OF AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law

was organize! in June 1963 at the request of the

President of the United States to involve private attor-

neys throughout the country in the national effort to

assure equal civil rights for all Americans through the

legal process. The Committee’, membership includes

three former Attorneys General, thirtcen past Presidents

2

of the American Bar Association, two former Solicitors

General, a number of law school deans, and many of

the ‘nation’s leading lawyers. Pursuant to a contract

with the Equal Employment Opportunity Commission,

the Lawyers’» Committee has since 1971 assisted the

private bar in five cities in litigation under Title VII of

the Civil Rights’ Act of 1964, as amended (42 U.S.C.

§§2000e et seg.), on behalf of injured individuals and

class ‘members unable to secure relief through the

EEOC. In addition, the Lawyers’ Committee, its Gov-

ernment Employment Project, its local committees, affi-

liates, and volunteer lawyers are actively engaged in

providing legal representation to the victims of racially

discriminatory employment practices in a wide range of

other cases. E.g., Morrow v. Crisler, 491 F.2d 1053 (5th

Cir.), cert. dented, __U.S.__ (1974); Carr v. Conoco

Plastics, 432 F.2d 57 (5th Cir.), cert. denied, 400'U.S.

951 (1970); Young v. International Telephone & Tele-

graph Co., 438 F.2d 757 (3d Cir. 1971); Douglas v.

Hampton, _ F.2d___, No. 72-1376 (D. C. Cir. -» Feb..27,

1975).

Amicus is troubled by. the position advanced in. this

case by the Company and Union petitioners as to the

circumstances under which district courts should award

back pay to minority citizens to reimburse them for

wae lost as a result of racially discriminatory prac-

tices.! The clear import of petitioners’ argument regard-

es

' This case also involves an issue as to the validity of ability

testing devices utilized by the Company petitioners for employ-

ment and job assignment purposes. Our review of the record

convinces us that the Court is not likely to accept the invitation

of the Company and an amicus to withdraw from the landmark

decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971).

therefore confine this brief to the back-pay questions, on which

the Court has not ‘previously spoken. '

3

ing the back-pay issue—that the back-pay standard

adopted by the Court of Appeals is in conflict with the

“traditional equitable discretion” accorded district

courts with respect to matters of relief—is that the

remedial powers of federal district courts, when exer-

cised in a manner which accords less than complete

relief, are not subject to appellate intervention except

upon a finding that the district court has grossly abused

its discretion. Petitioners argue that since the back-pay

provision of Title VII, 42 U.S.C. §200e-5(g), was de-

signed to invest district judges with ‘traditional equita-

ble discretion,” it necessarily follows that an appellate

guideline which requires full relief in the absence of

injustice to the losing party is an impermissible en-

croachment upon the trial court’, authority.

Petitioners’ position is without merit. It is directly

contrary to the established remedial principle that,

unless there are compelling circumstances amounting to

manifest injustice to the wrongdoer, legal wrongs do

not go without a complete remedy. Petitioners’ argu-

ment is also inconsistent with Congress’ purposes in

adopting Title VII. If petitioners’ contentions were sus-

tained, the national effort to eradicate racial discrimina-

tion in employment would be impeded. This brief is

filed by the Committee as a friend of the Court to urge

affirmance of the opinion and decision below. Strong

considerations of national policy demand that this

Court adhere to a standard of ‘complete justice” to

govern the award of back pay in n employment discrimi-

nation cases.’

4

* STATEMENT OF THE CASE

In this Title VII class action the District Court held

that the Company and Union petitioners had engaged

and were engaging in racially discriminatory employ-

ment practices that have consigned black workers to

less-desirable, lower-paying jobs, and assured white em-

ployees more desirable and better-paying jobs. (A. 474-

507.) Despite the wages concededly lost by the black

> ‘victims as a result of petitioners’ discriminatory prac-

+ tices, the District Court refused to make them whole

\ through an award of back pay.” The court offered two

' reasons for this anomalous result: first, it held that

petitioners’ racial employment practices were not the

+ product of subjective ‘“‘bad faith”; and second, it specu-

| lated that petitioners “might have chosen to exercise

} unusual zeal in having this [district] court determine

| their rights...” had they known of the back-pay claim

+ earlier than a year prior to trial. (A. 498.)

The Court of Appeals reversed the trial court’s re-

fusal to award back pay. It held that the innocent

victims of unlawful employment discrimination “should

; ordinarily be awarded back pay unless special circum-

' stances would render such an award unjust”

(A. 523-24), but admonished that ‘ta back pay award is .

- limited to damages which are actually suffered.”

4 (A. 524.)

authorizes the back-pay remedy, reads in relevant part as follows:

If the court finds that the respondent has engaged in or is

intentionally engaging in an unlawful employment practice

. . . the court may enjoin the respondent from engaging in

such unlawful employment practice, and order such affirma-

tive relief as may be appropriate, which may include rein-

statement or hiring of employees, with or without back pay

3 eae

i 2 Section 706(g) of Title VII, 42 U.S.C. §2000e-5(g), which

PD BM, AD:

Bayo eyo

5

SUMMARY OF ARGUMENT

This, case involves important public and congressional

policies relating to the elimination of racial discrimina-

tion. The resolution of this case may substantially influ-

ence the effectiveness with which Congress’ policies

regarding employment discrimination may henceforth

be implemented. Unless the principles applied by the

Court of Appeals are adhered to by this Court, the

strong national policies against employment discrimina- °

tion may be impeded and frustrated. \

Well-established legal and equitable principles require

that one who suffers unlawful injury should be placed, as

near as may be, in the situation he would have

occupied if the wrong had not been committed, unless

there is a clear and valid legislative command requiring

a less complete remedy. Accordingly, even without the

authorization of back pay contained in Section 706(g)

of Title VII, federal law imposes a “complete relief”

standard.

Nothing in the language of Title VII or in its legisla-

tive history indicates that Congress intended the victims

of employment discrimination to be made less than

whole. To the contrary, the background of Title VII,

including congressional awareness of administrative and

judicial implementation of other labor legislation, dem-

onstrates that Congress expected the courts to accord

each such victim a full measure of relief.

A judicial standard requiring back pay to be awarded

in the absence of injustice is essential for the achieve-

ment of the purposes of Title VII. If there are “special

circumstances” in which back pay need not be awarded,

such circumstances must be narrowly confined and care-

fully defined.

6

ARGUMENT

THIS CASE INVOLVES PUBLIC POLICIES OF THE

HIGHEST PRIORITY.

In the post-Brown® era this nation, by conscious

legislative and judicial decision, has rededicated itself to

the goals of the Reconstruction Amendments to the

Constitution. We have pledged to ,wipe out segregated

schooling and its deleterious effects. We have enjoined

the maintenance of* racially separate municipal parks

and recreational facilities,> as well as racial discrimina-

tion in public accommodations.® We have taken major

steps to ensure access to the political process. free of

race-based stumbling blocks.’ We have decreed for

black citizens “the freedom to buy whatever a white

man can buy, the right to live wherever a white man

can live.”® And, with particular relevance to this case,

we have demanded the elimination of racial discrimina-

tion in the terms and conditions of public and private

employment.’ As Judge Tuttle has said:

3 Brown v. Board of Educ., 347 U.S. 483 (1954).

* Brown v. Board of Educ., supra.

5 Watson v. City of Memphis, 373 U.S. 526 (1963).

6 Title II of the Civil Rights Act of 1964, 42 U.S.C. § §2000a

et seq.; Heart of Atlanta Motel v. United States, 379 US. 241

(1964).

7 Voting Rights Act of 1965, 42 U.S.C. §§1971 et seq.;

South Carolina v. Katzenbach, 383 U.S. 301 (1966); White v.

Regester, 412 U.S. 755 (1973).

8 Jones v. Alfred H. Mayer Co., 392 U.S. 409, 443 (1968);

Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§3601

et seq.

° Title VII of the Civil Rights Act of 1964, as amended by

the Equal Employment Opportunity Act of 1972, 42 U.S.C.

§ §2000¢e et seg.; Griggs v. Duke Power Co., 401 U.S. 424 (1971).

7

Racial discrimination in employment is one of the

most deplorable forms of discrimination known to

our society, for it deals not with just an individual’s

sharing in the “outer benefits” of being an American

citizen, but rather the ability to provide decently for

one’s family in a job or profession for which he

qualifies and chooses. Culpepper v. Reynolds Metals

Co., 421 F.2d 888, 891 (5th Cir. 1970).

Petitioners’ effort to describe this case as one unrelated

to the public interest is obviously without foundation.

Company Brief at 55. The Court of Appeals’ direétive

that back pay should be awarded is not in any sense a

windfall to respondents and their class. Those black

citizens who have suffered diminished opportunities as a

result of racial discrimination cannot obtain adequate

restitution from a decree that belatedly permits them

merely to transfer or move into a job for which they have

long been qualified. Such relief is, to be sure, a necessary

and long-overdue ingredient of an effective remedy, but it

is nonetheless plainly inadequate. The public interest is

not well served if the black victims of employment

discrimination, who have been deprived of ‘the freedom

to buy whatever a white man can buy,” are not awarded

the full economic benefits which they have lost solely

because of their race. Urgent national policies are at the

heart of the back-pay issue.

ee ae) ee ot

aaa thts

d siaf'd rook masa ae aaa st Si

EVEN IF CONGRESS HAD BEEN SILENT ON THE

QUESTION OF REMEDIES, WELL-ESTABLISHED PRIN-

CIPLES REQUIKE THAT THE VICTIMS OF EMPLOY-

MENT DISCRIMINATION BE RESTORED TO THE POSI-

TION THEY WOULD HAVE OCCUPIED HAD THE

WRONG NOT BEEN COMMITTED.

A. Equitable Discretion Must be Affirmatively

Exercised to Provide Complete Relief for Wrongs

Committed.

Equity came into existence “as an ameliorating system

of justice”! in response to “the omissions of the common

law, the injustice of many of its rules, and its inability

from its modes of procedure, to grant the variety of

remedies adequate to the wants of society and the

demands of justice....” 1 Pomeroy, Equity Juris-

prudence §62 (3d ed. 1905). See generally F.Maitland,

Equity 1-11 (2d ed. 1936). Equity’s principal purpose

was to expand the arsenal of remedies available to rectify

the most difficult and complex wrongs. Similarly, from

the earliest days of the Republic, the law has sought to

provide fair and adequate remedies to those who have

suffered unlawful injury. As Chief Justice Marshall

declared in Marbury v. Madison, 1 Cranch 137, 163

(1803):

The very essence of civil liberty certainly consists of

the right of every individual to claim the protection

of the laws, wherever he receives an injury... .

The government of the United States has been

emphatically termed a government of laws, and not

of men. It-will certainly cease to deserve this high

10 United States v. Morgan, 307 U.S. 183, 191 (1939) (Stone,

J).

; ETI weeny ss a SRN ERS EIT SEY Ns

+s herent

ee aa eee

2

" appellation, if the laws furnish no remedy for the

violation of a vested legal right.

This Court has since consistently held that

where federally protected rights have been invaded,

it has been the rule from the beginning that courts

will be alert to adjust their remedies so as to grant

the necessary relief. And it is also well settled that

where legal rights have been invaded, and a federal

statute provides for a general right to sue for such

invasion, federal courts ,May use any available

remedy to make good the wrong done. Bell v. Hood,

327 U.S. 678, 684 (1946).

Although the principle of ‘‘complete relief” is fre-

quently cast in terms of equitable discretion, this Court’s

decisions make clear that, ‘at least absent congressional

restrictions, the scope of equitable remedial powers is to

sp be determined according to the distinctive historical

“traditions of equity as an institution.”!! In a wide

variety of situations unrelated to racial discrimination,

this Court has sought to provide full and effective

remedies for violations of constitutionally and congres-

sionally declared rights, even where the applicable sta-

tutes simply confer general discretion to provide relief,

are silent as to personal remedies, or are silent even as to

“the existence of private causes of action. See, e.g., Bivens

v. Stix Unknown Named Agents, supra; J. 1. Case Co. v.

Borak, 377 U.S. 426 (1964); Mitchell v. De Mario

Jewelry, 361 U.S. 288 (1960); Textile Workers Union v.

Lincoln Mills, 353 U.S. 448 (1957); Porter v. Warner

Holding Co., 328 U.S. 395 (1946); Virginian Ry. Co. v.

System Federation No. 40, 300 U.S. 515 (1937). Cf.

Moragne v. States Marine Lines, 397 U.S. 375 (1970).

'l Bivens v. Six Unknown Named Agents, 403 U.S. 388, 40+

(1971) (Harlan, J. concurring).

10

Underlying these and similar decisions!? is a strong desire

“to accord full justice to all the real parties in inter-

est... .”’ Porter v. Warner Holding Co., supra, 328 U.S. at

398. Where a congressional policy or the public interest is

involved, discretion must be exercised in a manner that

fulfills the relevant policy or interest, for “‘it is the duty

of the courts to be alert to provide such remedies as are

necessary to make effective the congressional purpose.”

J. 1. Case Co. v. Borak, supra, 377 U.S. at 428. See also

Mitchell v. De Mario Jewelry, supra, 361 U.S. at 291-92;

Textile Workers Union v. Lincoln Mills, supra, 353 U.S.

at 457; Porter v. Warner Holding Co., supra, 328 US. at

398; Hecht Co. v. Bowles, 321 U.S. 321, 331 (1944);

United States v. Morgan, 397 U.S. 183 (1939); Virginian

Ry. Co. v. System Federation No. 40, supra, 300 U:S. at

552.

It is clear that ‘“‘traditional equitable discretion’? means

a duty to provide total relief in accordance with the

nature of the wrong and the public policies to be served.

The flexibility inherent in equity is designed to permit

the courts to make the injured party whole, not just half

whole.!® Relief must be complete, timely and effective. In

12 although some of the decisions referred to authorize legal

as opposed to equitable remedies, their rationale is not meaning-

fully different from that which ‘supports those cases more clearly

of an equitable nature. As described by Justice Harlan, concur-

ring, in Bivens, supra,

The notion of “implying” a remedy, therefore, as applied

to cases like Borak, can only refer to a process whereby

the federal judiciary exercises.a choice among traditionally

available judicial remedies according to reasons related to

the substantive social policy embodied in an act of positive

law. 403 U.S. at 402 n.4 (emphasis in original). See also

id. at 405-406.

.

6 Indeed, with the merger of law and equity in the federal

system in 1938, federal district courts, in striving for complete

justice, are empowered to grant both legal and equitable reme-

dies. See note 12, supra. Compare Steele v. Louisville & Nash-

ville R.R. Co., 323 U.S. 192 (1944) with Tunstall v. Brotherhood

of Locomotive Firemen, 323 U.S. 210 (1944).

11

antitrust litigation, for example, relief is adequate only if it

restores the situation as neatly as possible to that which

would have existed but for the unlawful conduct. “The

relief... must be ‘effective to redress the violations’ and

‘to restore competition.’ Ford Motor Co. v. United

States, 405 U.S. 562, 573 (1972). While trial courts in

such cases “‘are invested with large discretion to model

their judgments to fit the exigencies of the particular

case,”!* they have “the duty to compel action... that

will, so far as practicable, cure the ill effects of the illegal

conduct... .’” United States v. United States Gypsum Co.

340 U.S. 76, 88 (1950).!5 See also United States v.

Du Pont & Co., 366 U.S. 316 (1961).

The application of these principles has not been

limited to antitrust cases. Any contention that appellate

courts are without power to designate both the direction

and the extent of the trial court’s discretion is without

foundation. In a wide variety of situations, this Court has

not hesitated to define the limits within which district

courts must exercise their discretion. In Mitchell v.

DeMario Jewelry, supra, for example, the Court con-

cluded:

because of what we have found to be the statutory

purposes there is doubtless little room for the

14 International Salt Co. v. United States, 332 U.S. 392, 401-

02 (1947).

15 With regard to the trial court’s discretion, the Court said

that “‘we have never treated that power as one of discretion,

subject only to reversal for gross abuse. Rather we have felt

an obligation to intervene in this most significant phase of the

case when we concluded there were inappropriate provisions in

the decree.”” 340 U.S. at 89. ,

Cael RRR Nene RTP, PR SEERRRIIe yteRCn gah a tc ear Urs meena eta Nees =

4

exercise of discretion not to order reimburse-

ment. ... 361 U.S. at 296.!©

The Court merely does its duty when it provides such

guidelines. Appellate guidance is required by, and is not

hostile to, the discretion defined in such cases as

Langnes v. Green, 282 U.S. 531 (1931), and Hecht Co. v.

Bowles, supra.

This Court has closely scrutinized any claim that the

victims of unlawful conduct should not be restored to the

position they would have otherwise occupied. For exam-

ple, the Court has directed that “‘if necessary, persons not

originally connected with the litigation may be brought

before the court so that their rights in the subject matter

may be determined and enforced,” Porter v. Warner

Holding Co., supra, 328 U.S. at 398, and it has refused to

deny relief because of the difficulties in ascertaining the

value of the injuries or the exact extent of appropriate

relief. Bigelow v. RKO Radio Pictures, 327 U.S. 251, 265

(1946); Story Parchment Co. v. Paterson Parchment

Paper Co. 282 U.S. 555, 563 (1931). The Court has

unequivocally refused to limit the available remedies “‘to

prospective relief.” J. 1. Case Co. v. Borak, supra, 377

U.S. at 434. Instead, it has followed the principle

announced by Justice Cardozo:

Once let it be ascertained that the amount is

determinable, and all that follows is an incident. ...

[O]nce a wrong is brought to light[,] [t] here can

be no stopping after that until justice has been done.

'6 This Court in Mitchell rejected an argument similar to that

advanced by petitioners here:

Respondents cannot be heard to assert that wages are ordered

to be paid for services which were not performed, for it

was the employer’s own unlawful conduct which deprived

the employees of the opportunity to render services. 361

U.S. at 293.

RE eS ES as te ee

a

13

Bemis Bros. Bag Co. v. United States, 289 U.S. 28,

35-36 (1933).

In short,

The general rule is, that when a wrong has been

done, and the law gives a remedy, the compensation

shall be equal to the injury. The latter is the

standard by which the former is to be measured.

The injured party is to be placed, as near as may be,

in the situation he would have occupied if the wrong

had not been committed. Wicker v. Hoppock, 6

Wall. (U.S.) 94, 98 (1867).

This ‘“‘general rule” must govern this and other employ-

ment discrimination cases, unless there are compelling

reasons for a contrary result, or unless there is “a clear

and valid legislative command”!’ requiring only partial

vindication of the rights involved.

B. The “Complete Justice” Principle Is Equally

Applicable in Race Discrimination Cases.

In Steele v. Louisville & Nashville R.R. Co., supra.,

this Court inferred from the Railway Labor Act both

a right of black employees to be free of racial dis-

crimination in the collective bargaining process and an

equitable remedy which federal courts have the “‘duty to

give in cases in which they have jurisdiction.” Jd. at 207.

At the same time, the Court inferred a right to relief in

the form of money damages. Tunstall v. Brotherhood of

Locomotive Firemen, 323 U.S. 210 (1944).

17 porter v. Warner Holding Co., supra, 328 U.S. at 398. Simi-

larly, the Court has emphasized that:

Unless a statute in so many words, or by a necessary and

inescapable inference, restricts the court’s jurisdiction in

equity, the full scope of that jurisdiction is to be recognized

and applied. ‘The great principles of equity, securing com-

plete justice, should not be yielded to light inferences,

or doubtful construction.” Brown v. Swann, 10 Pet. (U.S.)

497, 403 (1836) /d.

14

Even in remedying the seemingly intractable problems

relating to racial segregation in the public schools, '®

the Court has followed the same rule — that the

goal “of a district court’s equitable powers [is] to

remedy past wrongs....” Swann v. Charlotte-

Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971). “As

with any equity case, the nature of the violation

determines the scope of the remedy.” /d. at 16.19

This Court has been equally concerned to insure

complete justice in connection with less complex forms

of racial discrimination. In Jones v. Alfred H. Mayer Co.,

392 U.S. 409 (1958), a case involving private housing

18 As it has turned out, the tangible aspects of segregated

schooling (e.g., racially identifiable schools) have generally not

proved to be intractable. But the imperceptible human harm

occasioned by racial discrimination (in employment ‘as well as in

education) is not readily susceptible to immediate judicial cure.

This is a necessarily tolerated imperfection in the law’s remedial

capacity. What cannot be tolerated, however, is the failure to rec-

tify promptly the relatively obvious results of disparate treat-

ment, such as unequal job assignments and lost wages. Such relief

is fairly simple compared, for example, to the complex problems

of restoring a competitive economic market that would have existed

but for antitrust violations. Although the Company petitioner

appears to suggest that back pay is so difficult to compute that

the federal courts should not be imposed upon for such relief

(Company Brief at 59), the Union readily concedes that “the Fed-

eral district court bench has for many years been engaged in fash-

ioning remedies for infringement of legal rights in a variety of

complex fields, so that the ramifications of Title VII actions are

hardly so exceptional as to strain its capacity.” (Union Brief

at 26).

19 See also Wright v. Council of the City of Emporia, 407

451, 463 (1972) (‘fa court supervising the process of desegre-

gation [must] exercise its remedial discretion responsibly”’ in light

of the established objective); Davis v. Board of School Comm'rs,

402 U.S. 33, 37 (1971) (“The measure of any desegregation plan

is its effectiveness’); Green v. County School Bd., 391 U.S. 430,

438 (1968) (a district court’s discretion must be exercised so as

to result in school systems “in which racial discrimination would

be eliminated root and branch’’).

eos:

15

discrimination made unlawful by the Civil Rights Act of

1866, the Court said:

The fact that 42 U.S.C. §1982 is couched in

declaratory terms and provides no explicit method

of enforcement does not, of course, prevent a

federal court from fashioning an effective remedy.

Id. at 414, n. 13.20

Similarly, in a voting rights case, the Court has empha-

sized that complete justice is the objective:

We bear in mind that the [district] court has not

merely the power but the duty to render a decree

which will so far as possible eliminate the discrimi-

natory effects of the past as well as bar like

discrimination in the future. Louisiana v. United

States, 380 U.S. 145, 154 (1965).

Finally, even where Congress has spoken on the question

of relief in traditional discretionary terms, this Court has

required the district courts to exercise their discretion in

such a manner as to grant, rather than to withhold, the

authorized relief. Thus, in construing Section 204(b) of

Title II of the Civil Rights Act of 1964, under which “‘the

court, in its discretion, may allow the prevailing

party ...a reasonable attorneys’ fee,”?! the Court has

20 In Jones the Court did not decide whether the available

remedy could include monetary relief, because it was satisfied that

the plaintiffs would be made whole by an injunction enabling

them “to purchase a home... at the price prevailing at the time

of the wrongful refusal [to sell] ...,” thereby putting them in

a position in which they would not “have suffered any uncom-

pensated injury... .” Jd. at 414 n.14. Relying on established

remedial principles and the congressional difective contained in

42 U.S.C. §1988, the Court subsequently held that monetary

relief was also available to make whole those injured by viola-

lations of 42 U.S.C. §1982. “The existence of a statutory right

implies the existence of all necessary and app. priate remedies.”

Sullivan v. Little Hunting Park, 396 U.S. 229, 239 (1969).

21 49 U.S.C. §2000a-3(b).

a aE Soe EE Na nie Meet Stee DE a a Pe, Oke aie aie MRR LT i nage ene eames ee

16

held that a successful plaintiff ‘should ordinarily recover

an attorney’s fee unless special circumstances would

render such an award unjust.” Newman v. Piggie Park

Enterprises, 390 U.S. 400, 402 (1968). The Newman

definition of discretion—tempered as it is by the oyer-

riding concer for justice, including the prohibition of fee

awards which would be “unjust” to the losing defend-

ant—is fully consistent with the traditional principles

discussed above. Moreover, the Court has applied the

Newman standard to ection ‘718 of the Emergency

School Aid Act of 1972,2% observing that “(t]he

similarity of language in §718 and §204(b) is, of course,

a strong indication that the two statutes should be

interpreted pari passu.” Northcross v. Board of Educ.,

412 U.S. 427, 428 (1973).3.

In sum, it is rudimentary that an injured party must be

placed as nearly as possible in the position he would have

22 90 U.S.C. § 1617 provides that ‘‘the court, in its discretion,

upon a finding that the proceedings were necessary to bring about

compliance, may allow the prevailing party . . . a reasonable attor-

ney’s fee as part of the costs.” This statute, like that involved in

Newman, is couched in traditional discretionary language, described

by the Court as “grant[ing] authority to a federal court to award

a reasonable attorney’s fee when appropriate in a school deseg-

regation case.” Bradley v. School Bd. of City of Richmond, 416

U.S. 696, 709 (1974).

= It is not a sufficient distinction of Newman and Northcross

to, say, as petitioners seek to do, that attorneys’ fees are different

from back pay. To be sure, there are differences, not the least

of which is the fact that attorneys’ fees go to lawyers while back

pay is received by those who have directly suffered loss as a

result of discriminatory. practices — a distinction which should |

favor back pay. But the true importance of Newman and North-

cross is that they establish a standard for exercising discretion

which is consonant with the goal of justice.

17

attained but for the unlawful conduct. This well-settled

principle has been strictly applied in the national. en-

deavor to cure the evils of racial discrimination. Only in

the most compelling of circumstances may full justice be

compromised. The public properly expects that the courts

will provide relief commensurate with the legal wrong.

“It is the exceptional denial of recovery that disturbs

these expectations.” Moragne v. State Marine Lines,

supra, 398 U.S. at 404. Such expectations will be

frustrated and the national policy against discrimination

will be impeded by ‘“‘adherence to a rule unjustified in

reason, which produces different results for breaches of

duty in situations that cannot be differentiated in

policy.” Jd. at 405.

This Court has uniformly imposed standards fer the

granting of relief to insure that an injured party will be

made wiiole. Such standards have been adopted where

Congress has created rights and simply conferred federal

court jurisdiction to grant “discretionary” relief, where

Congress has created rights but has remained silent

regarding the question of private remedies, and where the

rights stem from the Constitution and Congress has failed

to authorize any remedies. Such a standard of **complete

justice” is imperative here and.in similar cases, unless

Congress has dictated less by “a clear and valid legislative

command.”* To that consideration we now turn.

24 Porter v. Warner Holding Co., supra, 328 U.S. at 398. Since

we conclude below that Congress has not commanded less than

full relief from violations of Title VII, which operates to imple-

ment the Thirteenth and Fourteenth Amendments, we find it

unnecessary to consider whether Congress could constitutionally

insist on less effective remedies.

Rp mm 1S OPER Ee dee Ao of LEE GY ANCHE Roa RL LO OLE OL IL LLL IN PEL AN I GE Id

18

’ Hi.

NEITHER THE LANGUAGE NOR THE BACKGROUND

OF THE STATUTE SUPPORT AN INFERENCE THAT

CONGRESS INTENDED TO PROVIDE TITLE VII PLAIN-

TIFFS WITH LESS THAN A FULL MEASURE OF RE-

LIEF.

Section 706(g) of Title VII authorizes a district court,

in response to unlawful employment practices, both to

enjoin such practices and to “order such affirmative

action as may be appropriate, which may _ include

reinstatement or hiring of employees, with or without

back pay....” 42 U.S.C. §2000e-5(g). This open-ended

remedial authorization obviously does not evidence ‘‘a

clear and valid legislative command,” or even “‘a neces-

sary and inescapable inference” (see note 17, supra), that

less than complete justice should be permitted. If it were

nonetheless thought necessary to look beyond the plain

words of the statute, only confirmation of the obvious is

found: Congress intended that those subjected to em-

ployment discrimination should receive full restitution

for their injuries. The legislative history surrounding the

1972 amendments to Title VII demonstrates that th

only “‘clear and valid legislative command” is to make

whole the prevailing plaintiffs.”

25 For example, the legislative history indicates unequivocally

that:

The provisions of this subsection [Section 706(g)] are in-

tended to give the courts wide discretion exercising their

equitable powers to fashion the most complete relief pos-

sible. In dealing with the present section 706(g), the courts _

have stressed that the scope of relief under that section

of the Act is intended to make the victims of unlawful

discrimination whole, and that the attainment of this objec-

tive rests not only upon the climination of the particular

unlawful practice complained of, but also requires that per-

sons aggricved by the consequences and effects of the un-

[footnote continucd]

Peo ee.

°. . Boo My ey _ TIN a =

—_— ~ - Se? Se PE Eee PRES EES Sa ay

- : . Ee Bae Pe =

¢

19

Additional evidence of Congress’ purposes may be

obtained from the National Labor Relations Act, 20

U.S.C. §160, upon which Section 706(g) was expressly

modeled.2© The NLRA has been interpreted from the

earliest administrative?’ and judicial decisions to require

full restitutionary relief. It is how well-settled that “the

finding of an unfair labor practice is presumptive proof

that some back pay is owed by the employer.” NLRB v.

Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965),

cert. denied, 384 U.S. 972 (1966).28 The controlling

consideration is that relief in the form of back wages is

necessary to restore the just economic status quo ante

lawful practices be, so far as possible, restored to a posi-

tion where they would have been were it not for the un-

lawful discrimination. 118 Cong. Rec. 7168 (1972) (Section-

by-Section Analysis of House-Senate Conferees); id. at 3460-

3463. See also 113 Cong. Rec. 2298-2302, 1861-1864.

(emphasis added). ;

Congress was apparently referring to decisions such as Robinson

v. Lorillard Co., 444 F.2d 791 (4th Cir. 1971); Bowe v. Colgate-

Palmolive Co., 416 F.2d 711, 720 (7th Cir. 1969).

26 See, e.g., 110 Cong. Rec. 7212-15, 6549 (1964).

27 The National Labor Relations Board’s first published order

awarded back pay. Pennsylvania Greyhound Lines, Inc., 1 NLRB

1, 51 (1935), enf'd sub nom NLRB v. Pennsylvania Greyhound

Lines, Inc., 303 U.S. 261 (1938).

28 Reinstatement, including other affirmative relief required to

make the employee whole, is also presumptive. Cf. NLRB v.

H.N. Thayer Corp. 21% F.2d 748 (1st Cir. 1954), cert. denied,

348 U.S. 883 (1954); Phelps Dodge Corp. v. NLRB, 313 US.

177 (1941). The Court has, however, acknowledged that in

very unusual circumstances the Board may deny reinstatement

of a discharged employee, such as where an individual seeks

reemployment after offering his services as a labor spy. /d. at

195. Cf. McDonell-Douglas Corp. v. Green, 411 U.S. 792 (1973).

20

and to “make employees whole for losses suffered.”

Nathanson v. NLRB, 344 U. S. 25, 27 (1952).

Similarly, the Fair Labor Standards Act, 20 U.S.C.

§217, has been construed to require a comprehensive

remedy, including restitution of wages unlawfully with-

held by the employer. Mitchell v. DeMario Jewelry,

supra; Shultz v. Mistletoe Express Service, Inc., 434

F.2d 1267 (10th Cir. 1970); Shultz v. Parke, 413 F.2d

1364 (5th Cir. 1969); Wirtz v. Malthor, Inc., 391 F.2d 1

(9th Cir. 1968); Wirtz v. Atlas Roofing Mfg. Co., 577

F.2d 112 (5th Cir. 1967). The discretionary standard

adopted by the Court of Appeals in this case is similar to

that stated by Justice Harlan for this Court in Mitchell v.

DeMario Jewelry, supra. Here; as there, there should be

“little room for the exercise of discretion not to order

reimbursement.” 361 U.S. at 296.

The legislative policy of Title VII is thus the antithesis

of ‘a clear and valid legislative command”’ that the courts

should make less than whole those who are injured by

unlawful employment practices. The traditional princi-

ples discussed above in Part II, as well as those developed

under the NLRA and the FLSA, demand the adoption of

a rule for Title VII requiring back-pay awards unless such

awards would constitute manifest injustice to the defend-

ants.°0

29 Accord. Phelps Dodge v. NLRB, supra, 313 U.S. at 19-4;

NLRB v. Pennsylvania Greyhound Lines, Inc., supra,; NLRB v.

Mastro Plastics Corp., supra; NLRB v. Rutter Rex Mfg. Co.,

396 U.S. 258, 263 (1969). See also Golden State Bottling Co.

v. NLRB, 414 U.S. 160, 176 (1974).

30 The lower courts have generally reached a similar conclu-

sion. See, e.g., Robinson v. Lorillard Corp., supra; Head v. Timken

Roller Bearing Co., 486 F.2d 870 (6th Cir. 1973); Meadows v.

[footnote continued]

21

IV.

BACK PAY IS ESSENTIAL TO EFFECTIVE ENFORCE-

MENT OF TITLE VII; THE SPECIAL CIRCUMSTANCES

WHICH MIGHT JUSTIFY MORE LIMITED RELIEF MUST

BE NARROWLY CIRCUMSCRIBED.

As we have demonstrated above, the award of back

pay for wages lost as a result of unlawful conduct is an

integral part of the complete relief required by both

established doctrine and Title VII. Contrary to peti-

tioners’ claims (Company Brief at 60; Union Brief at 33),

adherence to the principle of complete relief in this case

will also substantially assist in making Title VII work®!

to eliminate employment discrimination. Once wrong-

doers realize that they cannot escape restitution for their

unlawful acts, the incentive to reform voluntarily in-

creases dramatically.°2 As the Court has stated in

another context:

Ford Motor Co., _ F.2d__, 9 FEP Cases 180 (6th Cir. 1975);

Duhon v. Goodyear Tire & Rubber Co., 494 F.2d 817 (5th Cir.

1974); Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364

(5th Cir. 1974); Pettway v. American Cast Iron Pipe Co., 494

F.2d 211 (5th Cir. 1974); Bowe v. Colgate-Palmolive Co., supra;

Johnson v. Georgia Highway Express Co., 417 F.2d 1122 (5th

Cir. 1969); U.S. v. Masonry Contractors, 494 F.2d 870 (6th Cir.

1974); United States v. Georgia Power Co., 474 F.2d 906 (5th

Cir. 1973).

31 See Culpepper v. Reynolds Metals Co., supra, 421 F.2d

at 891.

32 Petitioners argue that only those class members that have

filed charges with the Equal Employment Opportunity Commis-

sion should be entitled to back-pay relief. The effect of this

approach would be to render the provision of Rule 23 of the

Federal Rules of Civil Procedure a nullity and to treat Title VII

actions as a joinder of individual claims. The practical effect

would be a deluge of identical charges to the EEOC for prac-

tices that an employer has repéatedly refused to eliminate volun-

tarily. Furthermore, each of those charges would ultimately

[footnote continued]

22

The confidence of people in their ability to predict

the legal consequences of their actions is vitally

necessary to facilitate the planning of primary

activity and to encourage the settlement of disputes

without resort to the courts. Moragne v. States

Marine Lines, supra, 398 U.S. at 403.

An example of the effectiveness of voluntary compl-

iance where an agency operates under the “‘complete

relief”? standard is the Department of Labor’s administra-

: tive enforcement of the Fair Labor Standards Act. In

fiscal year 1974 the Department found violations of the

Act’s minimum wage, overtime and equal pay require-

ments affecting 341,000 workers. Employers then volun-

tarily made restitution to 263,000 of these workers—73

percent of the total.53 In contrast, the Equal Employ-

ment Opportunity Commission, with the same enforce-

ment authority but without a clear judicial standard from

this Court with respect to back-pay awards, was able to

muster only 2,279 successful conciliations out of a

bt

Stadt

ren Te ae,

result in a separate lawsuit, thereby inundating the courts with

: tens of thousands of individual claims for relief. The petitioners’

’ position has been repeatedly rejected by both the lower courts

$ and Congress. Oatis v. Crown Zellerbach Corp., 398 F.2d 496,

(5th Cir. 1968); Sanchez v. Standard Brands, Inc., 431 F.2d 455

(5th Cir. 1970); Bowe v. Colgate-Palmolive Co., 416 F.2d 711

(7th Cir. 1969). An amendment offered by Senator Hruska that

would have required the filing of charges as a pre-condition to

relief under Title VII was defeated. Legislative History of the

Equal Employment Opportunity Act of 1972, 92d Cong., 2d

Sess. at 1406, 1407 (Comm. Print. 1972).

33 Minimum Wage and Maximum Hours Standards Under the’

Fair Labor Standards Act, U.S. Department of Labor Employ-

ment Standards Administration, An Economics Effect Study Sub

mitted to Congress, 13-14 (1975).

SAAS ARSE TA

Rigs RANTS Fisch Ra Ll AR CR ANE

23

pending-charge load of 80,516 in fiscal year 1973 —or less

than 3 percent.

The award of back pay absent special circumstances

will serve the overriding purpose of Title VII of the

Act—prompt and complete elimination of employment

discrimination and its effects. This Court should not limit

back-pay relief except where such relief would be

demonstrably unjust to the wrongdoer. Just what such

circumstances would be must, of course, be determined

on a case-by-case basis.’ It is clear, however, that the

two factors relied upon by the trial court are inappro-

priate.

First, the trial court found that petitioners had not

engaged in their unlawful practices out of “bad faith.”

This Court has, however, already determined that the

elusive concept of “good faith” does not exempt a

violator from the remedial sanctions of Title Vil, any

more than it can justify the maintenance of segregated

parks*’ or segregated schools.3® Cf. Consolo v. Federal

34 Hearings on H.R. 15826 before the Subcommittee on Equal

Opportunities of the House Committee on Education and Labor,

93d Cong., 2d Sess., 279, 290 (1975).

35 The lower courts have indicated that such circumstances

may be incurred where the employer discriminated because of

the compulsion of state laws deemed at the time to be valid.

Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th

Cir. 1972); Kober v. Westinghouse, 480 F.2d 240 (3d Cir. 1973);

Manning v. General Motors Co., 466 F.2d 812 (6th Cir. 1972);

LeBlanc y. Southern Bell Co., 466 F.2d 1228 (5th Cir.) cert.

denied, 409 U.S. 990 (1972). Such circumstances also might be

present in those situations described in 42 U.S.C. §2000e-12(b),

where a defendant has relied on an opinion, written interpreta-

tion or instruction of the EEOC.

36 Griggs v. Duke Power Co., supra, 401 U.S. at 431.

37 watson v. City of Memphis, supra, 373 U.S. at 535.

a Wright v. Council of City of Emporia, supra, 407 USS. at

461-62. an

THOME eISSN EE

BR a Sake |

24 \

Mantime Comm’n, 383 U.S. 607, 624-25 (1966). A

“good faith” standard is particularly inappropriate in

connection with relief in employment discrimination

cases. The goal of Title VII is to eradicate discrimination

and to make whole its victims. The object of back pay is

restitution to the employee, not a penalty against the

employer. If a good faith issue were injected as a standard

governing relief; the focus of the litigation would be

diverted from the reall goal by requiring the trial court to

referee an otherwise irrelevant name-calling contest

among the litigants: Moreover, as with legislative enact-

ments, “it is extremely difficult for a court to ascertain

the motivation, or collection of different motivations,

that lie behind . . . [am employment practice] .”” Palmer v.

Thompson, 403 U.S. 217, 224 (1971). The law’s general

preference for objective standards has particular relevance

here, where the restitution is directed at making the

victim whole, rather than penalizing the wrongdoer.

The district court’s second reason for denying back

pay is related to petitioners’ claim that, notwithstanding

the clear authority of Section 706(g), they were’not put

on notice that back pay was an issue until approximately

a year prior to trial. This reason is legally insufficient, for

it has long been the rule “that at a trial upon the merits

the suitor shall have the relief appropriate to the facts

that he has pleaded, whether he had prayed for it ornot.

Cf. Equity Rules 19 and 22.” Bemis Bros. Bag. Co. v.

United States, supra, 289 U.S. at 34 (Cardozo, J.)39

39 See Rule 54(c), Fed. R. Civ. P. Pecuniary relief has fre-

quently been granted long after suit has been filed. Columbia

Nastic & Carter Caibone v. Columbia R. & C. Mfg. Co., 367

F.2d 308, 312 (2d Cir. 1966); Edward B. Marks Music Corp. v.

‘Charles K. Harris Music Pub. Co., 255 F.2d 518, 522-23 (3d Cir.

1958), cert. denied, 358 U.S. 831 (1958); Kansas City-St. Louis

[footnote continued |,

\

25

Further, “‘it has never been the law that a litigant is

absolved from liability for that time during which his

litigation is pending.” Consolo v. Federal Maritime

Comm’n, supra, 383 U.S. at 624-25.

Title VII can work, and the purposes of Congress

achieved, only if the justifications used to support a

denial of back pay are far more compelling than those

relied upon by the trial court in this case. Such

justifications should involve unequivocal evidence of

manifest injustice to defendants. Any less rigorous

standard would defeat the national policies reflected in

Title VII.

CONCLUSION

As shown above, the result reached and the standard

applied by the Court of Appeals are in complete harmony

with well-settled equitable and legal principles. The

court’s result and standard are required by those princi-

ples, absent legislation clearly mandating a less complete

remedy. There is no such legislative command. To the

contrary, the legislative directive here is to restore those .

injured by illegal racial discrimination to a status as near

as possible to that which they would have obtained but

for an accident of birth. It is not possible, of course, to

make truly whole those who have suffered and who

continue to suffer from the lingering vestiges of slavery.

The injury to “their hearts and minds” is “unlikely ever

& C.R. Co. v. Alton R. Co., 124 F.2d 780, 783 (7th Cir. 1941).

In a factual situation virtually identical to this case, the Court

awarded back pay, even though the Plaintiffs had not requested

this remedy until after the commencement of trial. Robinson

v. Lorillard Co., supra. Cf. NLRB v. Ruiter Rex Mfg. Co., supra

396 U.S. at 164 (Lengthy delays by the NLRB, insufficient to

limit an award of back pay).

26

to be undone.” Brown v. Board of Educ., supra, 347

U.S. at 494. But the law at least requires vigorous judicial

efforts to provide complete justice. Such a result has been

equity’s historic task. It reflects an overriding remedial

principle that remains viable and that was fully adhered

to by the Court of Appeals. It should again receive this

Court’s imprimatur.

Respectfully submitted,

RICHARD F. BABCOCK

WILLIAM H. BROWN, III

LLoypD N. CUTLER

ERWIN D. GRISWOLD

Lawyers Committee For

Civil Rights Under Law

J. HAROLD FLANNERY

% PAUL R. DIMOND

WILLIAM E. CALDWELL

LINDA E. PERLE

ROBERT B. WALLACE

520 Woodward Building

Washington, D.C. 20005

Attorneys for Amicus Curwe.