Great American Federal Savings & Loan Association v. Novotny

PETITIONER:Great American Federal Savings & Loan Association
RESPONDENT:John R. Novotny
LOCATION:Harrah High School

DOCKET NO.: 78-753
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 442 US 366 (1979)
ARGUED: Apr 18, 1979
DECIDED: Jun 11, 1979

ADVOCATES:
Eugene K. Connors – for petitioners
Lawrence G. Wallace – argued the cause for the United States et al. as amici curiae urging affirmance
Stanley M. Stein – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – April 18, 1979 in Great American Federal Savings & Loan Association v. Novotny

Warren E. Burger:

We’ll hear arguments next in 753, Great American Federal Savings and Loan Association against Novotny.

Mr. Connors, I think you may proceed whenever you’re ready.

Eugene K. Connors:

Mr. Chief Justice and may it please the Court.

This case is here on a writ of certiorari to the United States Court of Appeals for the Third Circuit.

This case was brought under two federal statutes.

The first statute is Title 42 U.S. Code Section 1985 (c).

Previously it was codified as 42 U.S.C. 1985 (3) but it’s more popularly known as the Ku Klux Klan Act of 1871 passed on April 20th of that year.

The second federal statute under which the suit is brought is Section 704 (a) the so-called retaliation provision of Title VII of the Civil Rights Act of 1964.

It’s a suit brought by a person named John Novotny, a former second ranking official in the Pittsburg, Pennsylvania Savings and Loan Association.

It was brought against the association and its individual officers and directors.

The facts alleged are that the association and its individual officers and directors discriminated against women in promotions and other aspects of employment.

Mr. Novotny allegedly protested against this at a board of directors meeting.

His Title VII cause of action is grounded upon the allegation that his subsequent discharge resulted from his protest at the board of directors meeting and therefore was opposition against a practice made unlawful within the meaning of Section 704 (a).

That cause of action incidentally was brought against both the association and the individual officers and directors.

The 1985 (3) cause of action is grounded upon the allegation that the individual officers and directors acting at all times on behalf of the association conspired to deprive women of their Title VII rights and they acted further into the conspiracy was Mr. Novotny’s discharge.

A motion to dismiss in the district court was filed and granted as to both causes of action.

The Third Circuit however sitting en banc reversed this to both causes of action.

Certiorari was sought and granted only on the 1985 (3) cause of action.

Therefore, Mr. Novotny’s Title VII retaliation cause of action against both the association and the individuals will survive irrespective of the outcome in this Court.

The issues as we see them are three, whether a depravation of Title VII rights is a depravation of equal privileges and immunities under the laws within the meaning of 1985 (3).

Secondly, whether agents of a corporation acting only on the corporation’s behalf can conspire within the meaning of 1985 (3).

And thirdly and lastly, whether the Congress under 1985 (3) intended to reach sex discrimination in private employment through the Commerce Clause or otherwise.

The language in 1985 (3) material to this case grants a federal remedy when two or more persons conspire for the purpose of depriving a class of persons of equal privileges and immunities under the laws.

It grants this civil cause of action to a person injured in his person or property were deprived of any right or privilege of a citizen of the United States.

Moving to our first issue to determine whether Title VII grants equal privileges under the laws, we believe it’s most appropriate to see what the effect of the Third Circuit’s opinion is on the workings of Title VII which is the right allegedly being asserted under 1985 (3) here.

Through Title VII, Congress has created certain rights to be free from discrimination in private employment including for the first time effective July 2, 1965 sex discrimination.

At the same time, Congress created what in Section 706 is the exclusive procedure for asserting and enforcing this Title VII created rights.

According to Mr. Novotny and the Third Circuit however, 1985 (3) made Title VII’s administrative judicial procedures permissive at the very moment of its creation.

A person deprived of any Title VII right whatsoever can bypass Title VII.

Congress has carefully designed, carefully thought out administrative judicial framework with its emphasis on conciliation and with specific time limits, deferral, provisions, all can be very easily subverted.

Eugene K. Connors:

The Equal Employment Opportunity Commission or a state fair employment practice agency, the agencies charged by the Congress with expertise in these matters that are supposed to take a very active role in conciliation and persuasion within the framework at the administrative processes in Title VII can be avoided.

Alternatively of course, a person under the Third Circuit’s reading of 1985 (3) can proceed through the administrative processes of Title VII and ultimately perhaps the federal court and at the same time proceed immediately to federal court under 1985 (3) creating a very real possibility of conflicting erroneous inconsistent decisions.

This situation is different from what this Court decided in the Johnson versus Railway Express case.

Johnson involved a preexisting independent right to sue under Section 1981 of Title 42.

In this case, we’re talking about 1985 (3) being read to take a right created by Title VII and thereby invalidate the administrative processes under which that Title VII created right was to be asserted and enforced.

In addition, despite the Third Circuit’s disclaimer that 1985 (3) would not apply to anything beyond equal employment opportunities.

There’s no holding back the thrust of the Third Circuit’s opinion.

The thrust — the logical trust of that opinion is to extend 1985 (3) to any federal substantive statute irrespective of whether such a statute has it’s own administrative framework and irrespective of whether Congress decided and designed it to be handled exclusively through it’s own administrative processes.

We would have in this Court and other courts a needless flood of duplicative litigation under such laws as the National Labor Relations Act, the Fair Labor Standards Act, Occupational Safety and Health Act, the Equal Pay Act, the Labor Management Reporting a Disclosure Act, the Age Discrimination Employment Act, and we can multiply that by 10’s and 20’s and 30’s and 40’s.

In our view however, that chaotic unreasonable result is unnecessary because —

John Paul Stevens:

I didn’t quite follow your argument but I didn’t read your Court of Appeals opinion is going quite that far, did you?

Eugene K. Connors:

Mr. Justice Stevens —

John Paul Stevens:

(Voice Overlap) the word equal in that.

Eugene K. Connors:

Yes, they did, but I believe under these statutes you can read the word equal in such a way that it can apply to this and other sorts of laws.

John Paul Stevens:

But does anybody ask us to do that?

Eugene K. Connors:

The Third Circuit’s logic, I believe, compels the court to draw some sort of a line between what rights are assertable under 1985 (3).

John Paul Stevens:

But what if we draw the line of to be the kind of thing that would be bad if it were done by a state agency in violation of Equal Protection Clause something like that, and that’s sort of the thrust of what they say I think.

Eugene K. Connors:

I’m not sure I read the Third Circuit’s opinion to say that I see the logical thrust of the Third Circuit’s opinion to reach any federal law that creates a right assertable in federal court in respect of whether it’s otherwise assertable within the framework of that law.

Thurgood Marshall:

We realize the opinions here but we’re passing on the judgments only.

Eugene K. Connors:

I understand, Your Honor.

We believe however that the chaos is unnecessary and the unreasonable result is unnecessary because the legislative history makes clear and the draftsmen and sponsors of 1985 (3) made clear that 1985 (3) is a remedial statute.

In fact, the Third Circuit specifically quoted from both Senator Edmunds who was the floor manager in the Senate for 1985 (3), then of course the Ku Klux Klan Act and also Representative Shellabarger.

The Third Circuit quotes from these two individuals appear at pages 27-A and 29-A of the Court’s opinion as reproduced in the cert petition.

1985 (3) does not stand on its own, it needs a right from another source.

It’s a remedy in search of a right.

For that reason, it’s unlike such laws as 1981 or Title VII which are substantive statutes combining both a right remedy.

And that is the distinction between 1985 (3) and for instance 1981.

Admittedly, the phrase laws in 1985 (3) appears all inclusive but the legislative history makes clear that Congress was creating a federal remedy and a federal form to assert rights, federal rights where none previously existed.

It was a need filling statute the Ku Klux Klan Act was finally passed in 1871 by the Congress because Congress learned from painful experience that it wasn’t enough to just create laws — create rights under for instance the Thirteenth, Fourteenth, Fifteenth Amendments saying that citizens had certain rights.

The states and private individuals is recognized in the Griffin case who are unable or who are unwilling to protect and respect such naked rights, unassertable rights.

Eugene K. Connors:

Under 1985 (3), Congress made for the first time such previously unassertable rights assertable in federal court.

1985 (3) was and therefore is a gap filling statute to fulfill a particular need.

It wasn’t designed to supplant or replace other carefully thought-out legislation which stands on its own like Title VII.

It was meant to apply where an existing remedy if it did not exist or was not being enforced.

Additionally, in 1985 (3) the phrase “equal privileges” is mentioned, equal privileges and immunities under the law.

We’re talking here about sex discrimination.

Not every citizen has a federal right to be free from employment discrimination under Title VII and that’s the right we’re talking about here.

For instance only employees who are employed by employers employing 15 or more individuals have a federal right to be free from sex discrimination.

In other words, since not every citizen has a right — a federal right to be free from sex discrimination, in our view, freedom from sex discrimination is not in equal with the acts on equal privilege and immunity because it isn’t extended to each and every citizen.

William H. Rehnquist:

Well, wouldn’t the Third Circuit’s answer to that be that with respect to all persons employed by employers are 15 or more persons, it is a right to equal treatment?

Eugene K. Connors:

The Third Circuit may well say that but if we go a little bit farther in the language of the statute it says in order to assert a civil cause of action under 1985 (3), a person must be injured in his person, in his property, or deprived of a right of national citizenship.

And I submit that you do not have a right of national citizenship to be free from sex discrimination since all citizens do not have that right.

Griffin recognized the possibility that courts could read 1985 (3) to be the (Inaudible) it was not and caution against reading 1985 (3) as a general federal tort law.

We believe that Third Circuit’s overbroad analysis and construction of 1985 (3) creates a general federal tort law despite the language in for instance Griffin which talks about having to establish under 1985 (3) and invidiously discriminatory class-based animus.

We submit that whenever you violate Title VII you automatically have class-based animus because we have created, Congress has created certain protected classes such as sex, national origin race, etcetera under Title VII to automatically would have class-based discrimination.

Invidiously discriminatory, I’m not sure exactly what that means.

I do know from the Screws case and from the footnote in the Griffin case that it does not mean specific intent, so it means something less and it may very well mean something as simple to prove and automatically approve as people intended the logical consequences of their action.

And thirdly, since we’re dealing here with a corporation I submit — but it doesn’t make any difference whether it’s a corporation or not.

I would submit it virtually every decision to discharge somebody, not to hire someone has a legal plurality of personalities involved.

In other words, at least two people have had input into that situation.

And if you have two people having input, you have a conspiracy.

Thurgood Marshall:

Two?

Eugene K. Connors:

At least two, Your Honor.

Thurgood Marshall:

I thought it was three or more (Inaudible)?

Eugene K. Connors:

Oh, with these (Inaudible) two would be fine, Your Honor.

Thurgood Marshall:

Alright, I mean, it’s not important to me I am —

Eugene K. Connors:

(Inaudible)

Thurgood Marshall:

(Inaudible)

Eugene K. Connors:

We feel that the only sensible way to read laws within the meaning of 1985 (3) are laws creating right not otherwise assertable without 1985 (3).

In other words, as a gap filling statute as the 1871 Congress fully intended.

Eugene K. Connors:

There are court cases which go beyond the readings, go beyond that position and I refer to that view as the broad view.

Those court cases have confined — confines the wrong word.

They say 1985 (3) covers rights which came into existence after 1871 including statutory rights.

Now, we submit that under are view with the statute even if this Court takes that view, this case ought to be dismissed as to the 1985 (3) cause of action simply because if the laws that were created after 1871 including statutory rights, creating statutory rights are not otherwise assertable without 1985, they’re covered under 1985 (3) but that by no stretch of imagination is Title VII.

We believe however, the correct reading of 1985 (3) is the reading that takes the statutory construction from the language of the statute itself.

Potter Stewart:

Would you — suppose you would have needed the 1985 (3) at all in the Griffin case against Breckenridge?

Couldn’t the suits been brought directly under the — since it has been brought directly asserting rights under the Thirteenth Amendment and the constitutional right to travel under state?

Eugene K. Connors:

I don’t believe so, Your Honor.

I believe, I would characterize Thirteenth Amendment rights standing alone and not otherwise implemented by a law with the right to interstate commerce as a naked right not otherwise assertable and that’s —

Potter Stewart:

Well, I know it’s not otherwise assertable.

Look at the Bivens case, for example.

Do you — familiar with that case?

Eugene K. Connors:

That — Bivens versus the Six Unknown Narcotics Agents?

Yes, yes, yes.

And that was a direct action under the jurisdictional — general jurisdiction statute 1331, I guess.

Eugene K. Connors:

That involve — state involvement and under the Fourth, I believe.

Well, but it was a direct action under a right directly given protection by the Fourteenth Amendment.

Eugene K. Connors:

I believe when we have state of federal involvement there, Your Honor, we’re talking about a different —

That case is the Fourth Amendment.

Eugene K. Connors:

That’s like the Fourth Amendment.

We’re talking about a different situation.

You’re talking about rights conferred by the federal constitution?

Eugene K. Connors:

Yes, we are.

And among those rights is the Thirteenth Amendment right of Negroes that have to be treated differently from other people and the right of everybody to travel interstate without interference.

Now those are two clearly established constitutional rights.

Couldn’t an action been brought in the Griffin case without invocation of 1985 (3).

Eugene K. Connors:

Not without state involvement, Your Honor, and that’s precisely I believe, —

Why?

Because neither one of those involves or require a state deprivation.

It’s deprivation by anybody.

The Thirteenth Amendment abolishes involuntary servitude and it doesn’t say that the private people can carry on involuntary servitude after that but only the states are prohibited from doing it.

And the interstate right to trouble is a right assertable against anybody not just against government.

Eugene K. Connors:

I submit, Your Honor, that that is not assertable unless there is a federal remedy such as 1985 (3).

Well, then —

Eugene K. Connors:

And I believe that is exactly the problem the congress grappled with within the legislative history underlying 1985 (3).

Several people spoke to the issue, I guess first promulgated by James Madison in the Federalist Papers that the creation of a right implies a remedy and several opponents of 1985 (3) said, “Why do we need to do anything?

We have a federal right.”

It implies a remedy as James Madison said, “Why don’t we just go ahead and let people come in to federal court and assert those rights even though we don’t have a remedy?”

The very telling point made immediately after that argument was that I forgot the gentleman’s name but he said, “That’s all well and good, that’s — we created those rights in the Thirteenth and Fourteenth Amendment but that didn’t stop two very close friends of mine from being shut down in the State of Florida.”

We need something that specifically tells people that they have a remedy and federal court to assert what we believe is an unassertable right.

Thurgood Marshall:

Do you agree regardless that did research on that period that she didn’t know what was going on when one man will say yes today and say no tomorrow and sometimes the same afternoon.

Eugene K. Connors:

There was a fair amount —

Thurgood Marshall:

(Voice Overlap) When you could do it would be to measure it and putting it on two sides and how many times you said yes and how many times you said no?

Eugene K. Connors:

There was a certain amount of ambivalence on the part of the state at that time.

And I believe the fact that you —

Thurgood Marshall:

That court said so in the Brown case?

Eugene K. Connors:

Yes, but I believe the decision on the part of a majority of the Congress both put the Senate and the House of Representatives was we need to show and tell people that they have a federal remedy where you have naked federal rights.

Here it is, Section 1 which is 1983 and here is Section 2 which is now 1985 (3) of the Ku Klux Klan Act.

Potter Stewart:

Mr. Connors, do you take the view or do you believe that the two sections which are now 1983 and 1985 (3) protect the same bundle of rights?

Eugene K. Connors:

I do not, Your Honor.

I — and the reason why — and I take this — I’m going to make one additional point.

I’ll also say that the criminal counterpart of 1985 (3) which is now in codified as Title 18 Section 241 is not — is more broad rather than 1985 (3).

And that’s because 1985 (3) unlike 1983 and unlike Section 241 goes on to say that in order to assert a civil cause of action a person has to be injured in his personal property or deprived of the right of national citizenship.

That language does not appear in the criminal counterpart and it also doesn’t appear in 1983 which was Section one of the Ku Klux Klan Act.

And that’s why I think this case basically is a case of statutory interpretation and construction.

If you’re arguing that the party so injured language narrows the statute, I should think you would have argued that the plaintiff being male was not a member of the class that was injured but you didn’t make that argument.

Eugene K. Connors:

That argument was made in both the District Court and the circuit since the case came down nine to nothing I suggest that the Third Circuit was not persuaded by that argument.

Well, they really weren’t persuaded by anything else.

Eugene K. Connors:

Exactly.

I mean I agree fully, Your Honor.

Eugene K. Connors:

Our position is that that language follows that only is contained in 1985 (3).

They also weren’t persuaded by what I want to be mine.

Eugene K. Connors:

Now, I consider myself in good company, Your Honor.

But our position is that that language that follows the special language that follows in 1985 (3) tells us really what Congress intended to reach as far as rights are concerned as far as the civil conspiracy remedy now set forth in 1985 (3) or (c) or however you prefer to it.

And that view as I said is taken from 1985 (3) itself.

It says specifically that the civil action is available only to a person, injured in it’s personal property or deprived of any right or privilege of a citizen of the United States.

Statutory rights aren’t mentioned by 1985 (3).

In this case, Mr. Novotny has alleged no injury to this person and I submit that no one under situation like this has any injury to this person or a depravation of a property right.

There’s no property right to a job and thirdly, there’s no deprivation of a right of citizenship.

As I’ve said earlier, Title VII does not give an untrammeled right to ever citizen to be free from sex discrimination.

Mr. Connors, you haven’t quite said it or if you have, I missed it.

But is it in your position not that in some that 1985 (3) protects or authorizes the assertion only of constitutional rights, not statutory rights?

Eugene K. Connors:

Yes, Your Honor.

Thurgood Marshall:

Even if the statute is certainly passed to enforce the Constitution?

Eugene K. Connors:

We are talking about constitutional rights though, Your Honor and —

Thurgood Marshall:

Okay.

Eugene K. Connors:

— all I’m saying is that’s what the statute says.

Thurgood Marshall:

(Voice Overlap) expressly to enforce to stop the Constitution?

Eugene K. Connors:

Those naked unassertable rights contained in the Constitution, yes.

Potter Stewart:

Now.

Thurgood Marshall:

Well, you said —

Potter Stewart:

— where do you say the statute says that?

Excuse me.

Eugene K. Connors:

Where it says that a person has a civil remedy when he’s injured in his personal property or deprived of any right or privilege of a citizen of the United States.

Those — the phrase rights of privileges admittedly are terms of art.

The draftsmen in the House and the Floor Manager Representative Shellabarger talks about privileges, immunities and says that they are fundamental rights inherent in citizenship of the United States as derived from the Constitution.

Now, a little bit later in the statutory in the legislative history Representative Kerr from I believe Illinois said, if I understand what you’re saying about privileges and immunities being fundamental rights of citizenship derived from the Constitution but in your first draft, you’ve got rights, privileges, and immunities.

And Mr. Shellabarger, a couple of pages later finally got around to saying, that’s right.

Thurgood Marshall:

Well, nobody (Voice Overlap) —

Eugene K. Connors:

Rights are derived —

Thurgood Marshall:

— that they had any censorship before the Fourteenth Amendment.

Eugene K. Connors:

I’m sorry I missed that Your Honor.

Thurgood Marshall:

Nobody had censorship before the Fourteenth Amendment.

Eugene K. Connors:

That’s correct, so we’re talking about the Fourteenth Amendment having been passed by that time.

Thurgood Marshall:

Well at that time, a woman would insist?

At least she couldn’t vote.

Eugene K. Connors:

She couldn’t vote but she was a citizen, Your Honor.

She — women did lack a lot of the attributes of citizenship at that time.

Potter Stewart:

If a native born female would come under the stat — the constitutional definition of the Fourteenth Amendment of a citizen.

Eugene K. Connors:

Of a citizen, yes, admittedly.

Admittedly, Your Honor.

(Inaudible)

Eugene K. Connors:

Yes, Your Honor.

Potter Stewart:

So if it’s true, of course that Griffin versus Breckenridge did involve only constitutional rights to specific rights —

Eugene K. Connors:

Yes, Your Honor, Thirteenth Amendment and right to interstate travel.

Potter Stewart:

And Collins against Hardyman involve an asserted constitutional right (Voice Overlap) —

Eugene K. Connors:

It was — it was his right —

Potter Stewart:

— right to petition?

(Inaudible)

Eugene K. Connors:

Petition the Government —

Potter Stewart:

Right of (Voice Overlap) —

Eugene K. Connors:

— for the reject of grievances.

Yes, Your Honor.

Potter Stewart:

Right and that was it.

So your submission is that 1985 (3) authorizes lawsuits only to protect only rights conferred by the Constitution?

Eugene K. Connors:

And injuries the persons or property to the extent that it arises under the Constitution, yes.

But we’re saying that you even though that’s are view which is taken from the statute, even if this Court takes the broad view taken by other circuits in district courts, this case can also be dismissed because the congressional intent was only to apply 1985 (3) where the right was not otherwise assertable and Title VII of course is otherwise assertable.

So, —

Potter Stewart:

Not by this Court.

Eugene K. Connors:

— this Court has a choice.

Potter Stewart:

Not by the respondent in this case?

Eugene K. Connors:

Yes, he did assert his Title VII rights within the context of Title VII.

He filed a charge and his Title VII action is brought against both the association and the individuals and that will survive —

Potter Stewart:

That’s what he tells us at the outset.

Eugene K. Connors:

Yes.

Yes Your Honor.

As we’ve pointed out, to determine what a corporate — moving to our second issues since I see my time is fast moving.

To determine whether a corporate agent is acting on the corporation’s behalf can conspire under 1985 (3), we must recognize first of all how our corporation really acts exclusively through its agents incapable of acting without them.

That’s why a corporation is only one person under the law.

Next we must see if under 1985 (3) there’s any need to disregard how a corporation really acts and we say there is no need for several reasons.

First, because under Title VII the corporate veil can be pierced in the classic sense where a corporation is a shell without assets or erected for an unlawful purpose.

Also under Title VII, an agent can be held individually liable.

In fact, the Solicitor General has cited a few cases in his brief to that effect and that’s taken from the definition of Section 701 (b) which defines an employer as a corporation and any of its agents.

Under principles of tort, agents can be held individually liable as joint tortfeasors through principles of respondeat superior, a corporation and its agents are already exposed to liability.

Much as individual conspirators are exposed to liability in a civil conspiracy context.

We say there isn’t any need to punish, to get out and punish the conspirators because this 1985 (3) creates a civil conspiracy and it’s only a criminal conspiracy that is out to punish individual conspirators.

That’s the job of Section 241 of Title 18.

We also say that to rule it otherwise and to say that a corporation can conspire with its agents could very easily show collect of action.The very life blood of the corporation.

And finally, the Dictionary Act which was passed on February 25, of 1871 near days before 1985 (3) was drafted, defined the word person to include the corporation as noted in this Court’s Monell decision to include a corporation within the framework of the definition person unless the contacts to the statute clearly indicates a more limited definition.

Warren E. Burger:

Your time has expired counsel.

Eugene K. Connors:

Thank you very much.

Warren E. Burger:

Mr. Stein.

Stanley M. Stein:

Mr. Chief Justice and may it please the Court.

I represent an individual who after 25 years of service with the same corporation held the position of high responsibility was the second in command in that corporation, had no previous questions raised regarding his competence or his loyalty.

And nevertheless was fired on January 22, 1975 after having been engaged in efforts to support claims and complaints made by women employees of the bank for which he worked that they have been discriminated against over a period of time and were continuing to be discriminated against.

He supported them verbally in a meeting of a board.

He supported them with his vote and voted against actions taken by the — all of the other members of the board and he was in a extreme minority.

In his actions did not side with “Management” and for that reason and that reason alone we would submit he was fired.

He immediately filed a charge with the Equal Employment Opportunity Commission and two years later, a right to sue letter was issued to him.

The longstanding history of inferior treatment which we would have been prepared to prove had we ever gotten past the motion to dismiss included women being paid less for the same work, receiving fewer promotional opportunities —

Mr. Stein, may I just interrupt with one question?

Stanley M. Stein:

Yes, Your Honor.

You have alternative theories in the District Court one under Title VII and one other 1985 (3).

Stanley M. Stein:

Yes, sir.

If you prove the facts you’re just describing to us, you presume we would recover under Title VII, do you need to prove any less to recover under 1985 (3)?

Is there any difference in the evidence that has to be presented by you to recover under one rather than the other?

Stanley M. Stein:

Yes, I think that I would have to prove under 1985 (3) that the discriminatory actions on the part of the members of the board were intentionally undertaking for the purpose of invidiously discriminating against a group, a class in this case.

Would you have proved that in order to recover against him for the man under Title VII?

Don’t you have to prove precisely the same thing?

Stanley M. Stein:

No, not necessarily, I don’t know that I have to prove any more than they fired him because of his particular advocacy, I don’t know that they have to have had an actual discriminatory animus against the women who they discriminated against.

And it may be that I might want to prove that.

What do you mean by discriminatory animus?

Stanley M. Stein:

Well, that their intention in firing him was because they had a — they were subjectively opposed to women’s rights.

They subjectively intended to —

They have to prove their motive and sort of an evil motive against women?

Stanley M. Stein:

Against women.

But you don’t have to prove that on the Title VII case?

Stanley M. Stein:

I don’t think I have to prove that (Voice Overlap) —

The Title VII (Voice Overlap) —

Stanley M. Stein:

— Title VII case —

— is the easier of the two?

Stanley M. Stein:

The Title VII is the easier of the two.

Then why are you pursuing this one?

Stanley M. Stein:

Because I think that this is a particularly aggravated situation and I think under the circumstances, the individuals should be required to be held individually responsible if they can be.

And I think the salutary effect —

In other words, the difference is you cannot hold the individuals responsible under Title VII?

Stanley M. Stein:

I may or may not be able to.

I have — I’ve never had the opportunity actually to develop the facts, I have filed here —

Well, under your theory of the case and assume you proved everything you have alleged.

Stanley M. Stein:

Well then I’m — then I would collect under Title VII but I would not necessarily collect the same — to the same extent.

Do you think the remedy is greater under Title — 1985 (3)?

Stanley M. Stein:

Again —

What in the statute is your greater remedy?

I don’t see much in your —

Stanley M. Stein:

Well, under Title — under 1985 (3), I may and again without saying that I do because this Court has never so indicated.

And I would like to really get to the fact development to determine and to continue more with the case but I may have a right to collect compensatory damages in the nature of additional costs for searching for another job.

I may have the right to collect for the damages if I can find inapplicable —

Well, in a word, do you think 1985 (3) provides a greater remedy than Title VII?

Stanley M. Stein:

I think that the 1985 (3) may provide greater remedies and at this point, these questions have not been decided by this Court and I think that’s somewhere down the road.

I see.

Stanley M. Stein:

I would — I would like to get to that point.

William H. Rehnquist:

Mr. Stein, am I wrong in thinking that titles have the right — you say it is created by Title VII is the substantive right which you are seeking to enforce under 1985?

Stanley M. Stein:

Yes, I would say that that’s the case in this particular instance without necessarily conceding to the Court because I haven’t fully gone into it without necessarily conceding that 1985 (3) didn’t create any substantive rights.

But I would say that we are asserting under 1985 (3) the statute passed by Congress which created the equality of rights for women and others.

William H. Rehnquist:

Certainly, that’s what the Third Circuit said?

Stanley M. Stein:

Yes, though I felt the Third Circuit didn’t have to go any farther than it had to go and it didn’t and I think the Third Circuit just simply felt the Congress was well within it’s constitutional powers to do that if that’s what it wanted to do.

William H. Rehnquist:

Well, no one is challenging this Title VII remedy here.

The question is whether the Title VII right is one that can be enforced not only under the Title VII procedure setup in 64 but it’s also a subject to the procedures provided in 1985 (3).

Stanley M. Stein:

That’s correct.

There are certain matters which I did not think were in a serious dispute.

I think that women are among persons who are protected under the terms of 1985 (3) and I think that it’s also clear that discrimination against women as a class is invidious discrimination.

I think that Title 1985 (3) the persons who suffered the discriminatory animus and the person who suffers the damage do not necessarily have to be the same person.

And I find nothing in 1985 (3) which would prohibit a man or any other person from asserting a right or asserting damage resulting from the invidious discrimination when he has suffered in fact suffered that damage.

And I would also like to point to the Court that this is not a case in which 1985 (3) was used to circumvent Title VII procedures.

Mr. Novotny immediately went to the EEOC and filed his claim with the EEOC and permitted the EEOC procedures to run long beyond the point at which he would have a right to have his right to sue issue to him if he had requested it regardless of what else happened.

The argument that Title VII will be undermined by 1985 (3), I think is an argument which has been made many times to this Court.

And I don’t think that there is any reason to believe that Title VII will use the Title VII will undermine the provisions of — I mean the use of 1985 (3) will undermine the provisions of Title VII in any way.

There are major benefits —

William H. Rehnquist:

Do you agree then that your client could not vote directly to court as soon as the claim retaliation took place under 1985 (3) but would first have to go to the EEOC?

Stanley M. Stein:

No, I do not.

Stanley M. Stein:

I believe that he could go to the court if he wanted to under 1985 (3).

I do not believe that very many people will.

William H. Rehnquist:

But those who want who could assert on that?

Stanley M. Stein:

I think those who want who could, those who want to file 1981 actions in the race case could.

And that particular — that particular availability has not seemed to bother this Court in those kinds of cases and this Court has faced that question exactly.

And I just don’t think that very many will do so and the 1985 (3) action is a rather narrow action when you come right down to it.

We are not talking about floods of litigation which will impel at this Court.

This is not a situation in which the EEOC will be put out of business.

Despite the existence of 1981 and other remedies the petitioners in their reply brief which they recently filed indicates that nevertheless almost 6,000 EEOC cases were in fact filed with the EEOC and I don’t think —

What’s your — the right that you’re asserting in this case when you said Third Circuit that was the Title VII right?

Stanley M. Stein:

Yes.

The substantive —

That you were using and —

Stanley M. Stein:

The substantive —

(Voice Overlap) we’re only assuming on the Title VII would have to wait for your right to sue letter, wouldn’t you?

Stanley M. Stein:

I would have to wait 180 days for my right to sue at which point I could request —

But — you suggest that you don’t — in order to enforce your Title VII right you don’t need to wait at all if you just use 1985 (3)?

Stanley M. Stein:

No, I am asserting that I —

And what statute — just indicated you didn’t have to wait.

Stanley M. Stein:

I am indicating that I do not have to wait to file the 1985 (3) action because I think the 1985 (3) cause of action has independent interests of its own.

Oh, I know but you — but your 1985 (3) suit in this case, I thought you conceded was to enforce Title — your Title VII right?

Stanley M. Stein:

Well —

The substantive right that you’re using 1985 (3) to enforce is your Title VII?

Stanley M. Stein:

No, not stated exactly that way.

The 1985 (3) case arises because of a violation of Title VII.

Potter Stewart:

There was a conspiracy to violate Title VII and your client —

Stanley M. Stein:

Yes.

Potter Stewart:

— was injured thereby.

Stanley M. Stein:

That’s correct.

And that in and off itself is a cause of action.

Stanley M. Stein:

It is not necessarily a Title VII cause of action and it’s a cause of action all by itself and I do not have to necessarily wait because there has been a violation of a federal statute.

I would perhaps as a matter of proof has to show that violation in my case.

Warren E. Burger:

Mr. Connors, you have covered the signals there with your pad.

Eugene K. Connors:

I’m sorry.

Warren E. Burger:

You have your first signal.

Thurgood Marshall:

It doesn’t work.

Mr. Connors or Mr. Stein rather, the right — Title VII right that you assert is it the same right that in 1985 (3) case is it would be in the Title VII case.

The thing I’m trying to figure out is, is there a difference in the intent requirement in the 1985 (3) case?

And if there is, does that indicate there is a difference in the substantive rule you seek to enforce?

Stanley M. Stein:

I do not believe that I have to show the violation of Title VII to recover under 1985 (3).

I’m not sure that I would have to show that the Title VII violation that occurred and against which my client spoke out was an intentional violation.

Well, you have to show it under the agreement the conspiracy though that got some mental element, hasn’t it?

Stanley M. Stein:

Yes, the conspiracy would be to — the conspiracy would be against him.

To violate Title VII though.

Stanley M. Stein:

Well, —

To deprive him of a Title VII right?

Stanley M. Stein:

No, and not necessarily because the conspiracy would have to be to deprive — the conspiracy will have to be deprived others of rights which they have on their statutes.

Thurgood Marshall:

Title VII?

Stanley M. Stein:

Title VII rights.

Title VII, so, — okay.

If they have to intend and —

Stanley M. Stein:

To deprive him of —

— deprive him of Title VII rights.

Stanley M. Stein:

— VII rights.

Well, but I still don’t think you’ve answered my question.

I mean, we sure are trying to get it out as clearly as I can.

Supposing the directors all agreed that their experiences that women are not as effective workers as men and maybe they’re wrong and they have scary type views.

But they just think women shouldn’t be paid as much so they pay him 10% less.

But they do it in good faith because they think they’re not good employees.

Is that a violation of Title VII?

Yes.

Stanley M. Stein:

Yes.

Is it a violation of 1985 (3)?

Stanley M. Stein:

No, but he would not necessarily be —

Why not then?

Stanley M. Stein:

He would not necessarily be suing on that per se.

If he came in and then spoke out but against that and advised them that they were then doing that and they knowingly —

When they say — we think this is in the interest of the company, it will save us money and women are (Inaudible); that violates 1985 —

Stanley M. Stein:

Yes.

— Title VII but does not violate 1985 (3)?

Stanley M. Stein:

It may not violate —

But that you are relying on a different substantive right then?

Stanley M. Stein:

No, because —

There’s an additional ingredient of the violation if I understand you correctly in 1985 (3)?

Stanley M. Stein:

Well, but there may be a different purpose in their terminating his employment.

And if they are terminating —

Well, (Voice Overlap) — do you not have to prove something additional to establish a violation of 1985 (3) and if you say yes, then what’s the source of that right?

It must be in the statute itself.

Stanley M. Stein:

Well it may be and I don’t necessarily —

So, you think the position in 1985 (3) is not purely a remedial statute?

Stanley M. Stein:

It may and it may not be a purely remedial statute and I haven’t conceded that it is a purely remedial statute but (Voice Overlap) —

(Voice Overlap) but must you not argue that it is not?

Stanley M. Stein:

Pardon me?

Must you not be arguing that it is more than a remedial statute?

Stanley M. Stein:

Well, under the facts of this case I’m not sure that I do because I have a circumstance in this particular case where I can prove that the discrimination in this case was intentional.

That the discrimination against women was intentional in knowing, so under the facts of this case —

Well, (Voice Overlap) not because they didn’t like women?

Stanley M. Stein:

Yes.

Thurgood Marshall:

Wasn’t that part (Inaudible) before Title — before the statute was passed?

Stanley M. Stein:

Well, yes.

Thurgood Marshall:

He — well, he couldn’t have brought it before Title VII but it could be viewed 1985 before Title VII was adopted?

Stanley M. Stein:

I would indicate for the purpose of this argument that that may be true.

I may not have.

Well, if I were —

Thurgood Marshall:

Well, what would you rely on?

Stanley M. Stein:

If I were to have brought the —

Thurgood Marshall:

You’d say — if they need to be conspired they did not mean what?

Stanley M. Stein:

Well, —

Thurgood Marshall:

What would you say?

Stanley M. Stein:

I would — I could argue —

Thurgood Marshall:

What could you say the conspiracy were to deny on what right?

Stanley M. Stein:

The conspiracy would be to deny women rights which they may have had and this would get into a possible argument which I did not want to necessarily press before this Court of the extent of the Thirteenth Amendment and the possibility of the creation of the specific right to employment on the part of everybody that is the freedom from discrimination in employment on the part of any person whom — who —

Thurgood Marshall:

Well, certainly 1985 didn’t mean that?

Stanley M. Stein:

No.

Well, I don’t —

Thurgood Marshall:

Certainly, it didn’t mean that.

Stanley M. Stein:

— know what 1985 meant in that regard and I’m not necessarily — because the argument —

Thurgood Marshall:

Unless, you want to get through all four cases in 100 U.S.

Stanley M. Stein:

Right.

Mr. Stein as I read your complaint, all you’ve alleged is that they treated the women differently than they treated the men.

You don’t allege that they didn’t like women.

Stanley M. Stein:

Well I don’t necessarily say that they didn’t like women but what I think I do allege is that they knowingly discriminated.

Treated women —

Stanley M. Stein:

Knowingly discriminated.

Now, I think that —

That’s the first case I gave you.

They paid them less deliberately because they thought they weren’t as good and it turns out they’re wrong.

I don’t think you have alleged to know other than an intent to treat them differently.

Stanley M. Stein:

Well, and I think as I responded to the — I responded to the court’s question at that time that that’s not the case that I was necessarily pleading in the complaint.

Warren E. Burger:

Now Mr. Wallace has now reclaimed you’re —

Stanley M. Stein:

Yes.

Warren E. Burger:

— invading this time Mr. Connors.

Stanley M. Stein:

Thank you Your Honor.

Warren E. Burger:

Mr. Wallace?

Lawrence G. Wallace:

Mr. Chief Justice and may it please the Court.

It is the position of the United States and the Equal Employment Opportunity Commission in this Court that eight years ago, this Court after a careful review of the legislative history of what is now 1985 (c) in the latest edition of Title 42 restored that statute to its proper role in civil rights enforcement.

And that the Court of Appeals in this case properly extended the principles of the Griffin decision in a manner that is compatible with the Title VII.

As we understand the basic principle of Griffin against Breckenridge it’s that 1985 (c) serves as a remedy for aggravated cases of the violation of other federal rights in which aggravated cases in which a number of individuals sharing a class based discriminatory animus join in scheme to deprive a person or persons of their rights under federal law and therefore denied him equal protection of the federal law equal rights and privileges under the laws in the words of the statute.

And that is the kind of claim as the Court of Appeals construed the complaint here that was raised in this case and no question has been put to this Court about the Court of Appeals construction of the complaint.

Nor has any question been raised about what the Court of Appeals has decided under Title VII in the case thus far although we noted on page 27 of our brief in footnote 16 that the petitioners have resolved the possibility of asserting a defense for the individual directors under Title VII based on the fact that they were not named in the original Title VII charge individually.

We — we’ve stated our view that that would not be a valid defense and —

Stanley M. Stein:

Is it also arguable if they were not employers within the meaning of the statute?

Lawrence G. Wallace:

Well, the statutory definition of employer in Title VII includes agent of the employer so that any place that the word employer or the word that the statutory definition of union is the same in Title VII.

So that any place that there’s a liability of the employer or the union there’s a liability of the agent.

William H. Rehnquist:

Since you’re an amicus, Mr. Wallace I presume you’re not entitled to enlarge your or subtract the issues in the case?

Lawrence G. Wallace:

I assume so, Your — Mr. Justice and we’re not attempting to.

I was just mentioning the relationship between the Title VII claim which has not been brought here but where a defense still remains to be asserted in the case.

The question had been raised about why did the petitioners bring only the 1985 claim here and this is one factor that was not mentioned in previous discussions.

The Court of Appeals had to reach some issues that the court — that this Court in Griffin did not find it necessary to reach in order to decide the case and a number of those have not been presented in this Court.

There is no claim made in this Court that the Court of Appeals aired in construing 1985 (c) as extending to class-based deprivations other than racial deprivations.

The Court of Appeals dealt with that issue correctly in our view but the question as we see it is not before the Court.

Although what the case does present to the Court is the question whether the kind of supplemental remedy that Section 1981 provides under this Court’s unanimous decision in Johnson against Railway Express on this point.

That kind of supplemental remedy in racial cases under Title VII will also exist in sex discrimination cases under Title VII.

Oh, that’s one way of looking at the question that’s presented here because 1981 addresses only racial discrimination and the other classes protected by Title VII have to look to 1985 (c).

Potter Stewart:

Of course —

Lawrence G. Wallace:

As it —

Potter Stewart:

— it could (Voice Overlap) of Title VII?

Lawrence G. Wallace:

Well, of course Title VII is available for the racial cases as well as the others.

The only supplemental remedy comparable to 1981 for the other classes protected by Title VII is 1985 (c) and that is the significance of the case whether the supplemental remedy will be limited to racial cases looking at the cases and employment discrimination case.

What does — what kind of a class-based discrimination must be alleged do you think Mr. Wallace?

In this case it’s against women?

Lawrence G. Wallace:

In this case it’s against women.

And under that resulted in some injury to this employee?

Lawrence G. Wallace:

Yes, but he became a person injured —

And the —

Lawrence G. Wallace:

— for the retaliation which Title VII —

What protection —

Lawrence G. Wallace:

— protects him against.

With respect to my Brother Stevens’ question.

Does it — do you have to allege something besides just treating women as a class differently?

They — the intention — you must say they have the purpose of treating them differently intentionally treating them differently.

Lawrence G. Wallace:

Well, as we —

Intentionally treating them differently.

Lawrence G. Wallace:

Yes, as we see 1985 (c) it involves additional elements to a Title VII violation in the sense that it’s an aggravated kind of a Title VII violation.

It’s not that 1985 (c) is a separate substantive right against

Well, it is a conspiracy.

Lawrence G. Wallace:

— discrimination.

It is a —

Lawrence G. Wallace:

It’s a remedy for aggravated violations of all of rights to find elsewhere.

Aggravated in the sense that it’s a conspiracy?

Lawrence G. Wallace:

There has to be a conspiracy but the conspiracy must involve a shared animus, a shared class-based animus.

Its animus.

(Voice Overlap) animus, anything other than they treat them differently?

Lawrence G. Wallace:

It —

For example, take the Manhart case which I’m sure you’re familiar with.

Would that — would the action of the directors there to adopt different pay, the contributions for women and men, would that violate 1981?

Lawrence G. Wallace:

It doesn’t really mean anything other than to treat them differently in the sense that the focus is on the class.

It wouldn’t extend —

Now, would if you have a pay scale, the women get 10% less than men even though you think they’re 10% less efficient and prove that later you’re wrong.

Lawrence G. Wallace:

But you see Title —

You violate 1985 (3), is that your position?

Lawrence G. Wallace:

That’s right, but the Title VII under this Court’s decision in Griggs extends to employment criteria where the focus is not on the protected class.

Griggs involved a high school diploma requirement for someone to be hired to shovel coal at the Duke Power Company as well as tests that were given.

And those had a disparate effect at the criteria —

Well, you hold (Voice Overlap) —

Lawrence G. Wallace:

That the criterion was —

— 1985 —

Lawrence G. Wallace:

— not based on the class.

— (3) that high school diploma for shoveling coal would violate 1985 (3), the people —

Lawrence G. Wallace:

Well —

— who decided to impose the —

Lawrence G. Wallace:

There would have to be a showing that there was something more than a desire to encourage people not to dropout of high school or you know a hope that people hired at the bottom would have the ability to rise up through the company.

Something that did focus on animus toward the protected class.

But (Inaudible) I guess an equal impact would not be enough?

Lawrence G. Wallace:

An equal impact would not be enough under 1985 (c) but as we understand it, it is an enough under Title VII.

And —

Thurgood Marshall:

Well, on animus, a few years ago when this Court said women were entitled to sit on the jury, the Court was guilty of animus?

I mean, I think the word is a very encompassing word.

Lawrence G. Wallace:

Well, perhaps it isn’t.

Thurgood Marshall:

Did you understand your meaning that you don’t have what you and I think of animus nor they?

Lawrence G. Wallace:

Well, it doesn’t have to be hostility.

Thurgood Marshall:

Right, right.

Lawrence G. Wallace:

But there has to be a shared purpose to deprive members of one of the protected classes of their federal right although it doesn’t have to be —

To put it more simply, a shared purpose to treat them differently from the members who are not in the class, that’s the whole thing.

Lawrence G. Wallace:

That’s — it simply put it that we don’t disagree with that.

And that we think is the proper office of 1985 (3) of the legislative history of Title VII which this Court has reviewed in detail in recent cases is quite specific that the comparable supplemental remedy under 1981 was to be preserved.

And was considered by those who enacted Title VII to be compatible with the exhaustion requirements and administrative procedure that was set up under Title VII.

It would have been difficult to find a federal statute with more specific history that the remedies created along with the substantive rights in Title VII were not intended to be exclusive but were intended to permit a supplemental remedy that is comparable in every way to the remedy being asserted here under 1985 (c).

It’s difficult —

William H. Rehnquist:

But 1981 rights don’t depend in any way on Title VII?

Lawrence G. Wallace:

That is —

William H. Rehnquist:

The reason — the right plan here does depend on Title VII.

Lawrence G. Wallace:

There’s a difference in theory of the remedy that is correct Mr. Justice Rehnquist.

But from the standpoint of the legislative intent of the sponsors of Title VII it is apparent that they did not think it would be inappropriate to have a remedy that was in every way comparable still available for persons protected against racial discrimination by Title VII.

And there’s no reason to think that their view would be different if they had focused on the question about the other classes protected by Title VII.

So as a matter of statutory construction of Title VII, there’s no reason to think that a bar to alternative remedies was intended.

William H. Rehnquist:

But is there any reason to think that they intended the Title VII remedies where to be enforced in any other way than that provided in Title VII?

Lawrence G. Wallace:

They certainly did at that time not the Title VII remedies would be enforced but that alternative remedies would still be available and none would be taken away.

So that if our construction of 1985 (c) is correct that it extends to aggravated instances of class-based depravations of rights prescribed by other federal laws or the Constitution then the Congress indicated in Title VII no desire to take away that method of asserting a right in the federal courts.

Mr. Wallace, what is the aggravation in this case under the bill of complaint beyond nearly preferring to employ men to women.

Is that aggregation — aggravation per se?

Lawrence G. Wallace:

Well it is the shared purpose, the conscious conspiracy in the sense of a shared purpose to treat women differently even though federal law said that they should not be treated differently.

It is not more complex than that Mr. Justice.

Warren E. Burger:

Mr. Wallace, it’s certainly a pattern in the business life of this country and that’s carried over into the Government of this country and right into this Court, that most of the secretaries of the justices and the presidents of corporations and congressmen are women.

Now would that be the kind of shared purpose or some way, are all these people disfavoring men because we have found that at least we think we have found that women are more dexterous, they do a lot of things better than men do.

So, I think for years and years there is two or three exceptions over this century all the secretaries of justices on this Court have been women.

Lawrence G. Wallace:

Well perhaps, few men have been turned away.

I don’t know that male applicants have not received fair consideration certainly under Title VII.

Warren E. Burger:

Maybe they’re just frightened away by the tradition?

Lawrence G. Wallace:

Well, women who aspire to this kind of employment have the right to be considered on their merits for it even if all the rest of the secretaries are women.

This relates to previous argument of this term.

Warren E. Burger:

Well that terminates this.

Thank you gentlemen.

The case is submitted.