Brown v. A. J. Gerrard Manufacturing Co. Brief of the NAACP Legal Defense and Educational Fund as Amicus Curiae

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS

No. 81-7792

EDDIE CHARLES BROWN,
Plaintiff-Appellant, 

v .
A. J. GERRARD MANUFACTURING CO.

Defendant-Appellee.

On Appeal from the United States District Court for the Northern District of Alabama

BRIEF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., AS AMICUS CURIAE

BARRY L. GOLDSTEIN Suite 940
806 15th Street, N.W. 
Washington, D.C. 20005
JACK GREENBERG
Suite 2030
10 Columbus Circle
New York, New York 10019
Attorneys for The NAACP Legal 
Defense and Educational Fund, 
Inc., As Amicus Curiae



CERTIFICATE REQUIRED BY LOCAL RULE 13(a)

The undersigned counsel of record for the plaintiff-appellant 
certifies that the following listed persons have an inerest in the 
outcome of this case. These representations are made in order that 
the judges of this Court may evaluate possible disqualifications or 
recusal pursuant to local Rule 13(a):

1. Eddie Charles Brown, plaintiff.

2. A. J. Gerrard Manufacturing 
Company, defendant

3. NAACP Legal Defense and Educational 
Fund, Inc., amicus curiae.

Attorney For AMICUS CURIAE

t

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Page
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4

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4

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12

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INDEX

Certificate Required by Local Rule 13(a)
Table of Authorities 
STATEMENT OF INTEREST 
ARGUMENT
As a Victim of the Company's Discriminatory 
Discharge, Plaintiff Brown Is Entitled to 
Receive as Back Pay All Wages Which He Lost 
as a Result of the Company's Discrimination;
As a Lawbreaker the Company May Not Have the 
Government Benefit, Unemployment Compensation, Received by Brown Used to Reduce its Leqal Liability.

A. Issue and Factual Statement.
B. The Language of Title VII and the 

the Legislative History Bar the 
Deduction of Unemployment Compen­
sation in the Calculation of an Award of Back Pay.

C. The Deduction of Unemployment 
Compensation Benefits from Back 
Pay Awards Conflicts with the 
Principles for Application of 
Title VII Established by the Courts.

CONCLUSION
Attachment A: "Significant Provisionsof State Laws (July 6, 1980), Appendix 
13.4 to National Commission on Unemploy­
ment Compensation, Unemployment Compen- sation; Final Report (1980) .

CERTIFICATE OF SERVICE



TABLE OF AUTHORITIES

/

w«

$

Cases :
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)....

Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir. 1980) (en banc), aff'd, 452 U.S. 89 (1981 )..............
Bernard v. Gulf Oil Co., 452 U.S. 89 (1981).........
Brown v. A. J. Gerrard Mfg. Co., 643 F .2d 273(5th Cir. 1981).................................
Brown v. A. J. Gerrard Manufacturing Co., 695 F.2d 

1290 (11th Cir. 1983) (rehear, en banc granted)....
Brown v. Bd. of Education, 347 U.S. 438 (1954)......
EEOC v. Ford Motor Company, 645 F .2d 183 (4th Cir. 

1981), rev1d on other grounds, 50 USLW 4937 (1982).
Franks v. Bowman Transportation Co., 424 U.S. 747 (1976)....................................
Griggs v. Duke Power Co., 401 U.S. 424 (1971).......
James v. Stockham Valves & Fittings, Inc., 559 F .2d 

310 (5th Cir. 1977), cert, denied, 434 U.S. 1034 (1978).............. ......7 7 7 :—
Johnson v. Goodyear Tire Co., 491 F .2d 1364 (5th Cir. 1974)...........................
Kauffman v. Sidereal Corp., 695 F.2d 343 (9th Cir .

Marks v. Prattco, Inc., 607 F .2d 1153 (5th Cir. 1979)
Marshall Field & Co. v. NLRB, 318 U.S. 253 (1943)___
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (1970)...................................
N.A.A.C.P. v. Button, 371 U.S. 415 (1963)...........
NAACP Legal Defense and Educational Fund, Inc. v. 
Campbell, 504 F.Supp. 1365 (D.D.C. 1981)..........

Pages :
2-3, 7, 
12-13, 16

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1

4

7
2

7-8, 16

2

2

2, 13

2, 8, 12, 14

8, 16 
13 
11 

7

1
1

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TABLE OF AUTHORITIES (Continued) 
Cases :
NLRB v. Gullett Gin Co., 340 U.S. 361 (1951)....... .
Northcross v. Board of Ed., 611 F .2d 624 (6th Cir. 

1979), cert, denied, 447 U.S. 911 (1980)...... !...
Parson v. Kaiser Aluminum & Chemical Corp.,575 F . 2d 1374 (1978)..............................
Pettway v. American Cast Iron Pipe Co., 494 F 2d 211 (5th Cir. 1974)....................................
Shelley v. Kraemer, 334 U.S. 1 (1948)...............
Teamsters v. United States, 431 U.S. 324 (1977).....
United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973)..................................
United States v. N. L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973)...............................
United States v. United States Steel Corporation,

520 F .2d 1043 (5th Cir. 1975), cert, denied,
429 U.S. 817 (1976)........... 77777 .777777___

Statutes and other authorities:
National Labor Relations Act, 29 U.S.C. §§151 et seq.
Title VII of the Civil Rights Act of 1964 (as amended 1972), 42 U.S.C. §§2000e et seq...................

J * (198^ & P * Nutman' Understanding the Unemployed

National Commission on Unemployment Compensation, 
Unemployment Compensation: Final Report (1980).__

« Note, The Deduction of Unemployment Compensation
for Back-Pay Awards Under Title VII, 16 U. Mich.J. L. Ref. ______. (Issue 3, 1983) (To bepublished)...............................

United States Unemployment Insurance Service, Depart­
ment of Labor, Comparison of State Unemployment Insurance Law. §§220.01-04............ ............

110 Cong. Rec. 7214 (1964)..................

iv

Pages :
8-11, 15

1-2

13

2 , 6 , 8 , 12
2

7

2 , 8 , 12

13

2

passim

passim

14

9-11, 14-15, 
Attachment A

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7
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IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS

No. 81-7792

EDDIE CHARLES BROWN,
Plaintiff-Appellant, 

v .
A. J. GERRARD MANUFACTURING CO.

Defendant-Appellee.

On Appeal from the United States District Court for the Northern District of Alabama

BRIEF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., AS AMICUS CURIAE

STATEMENT OF INTEREST
The NAACP Legal Defense and Educational Fund, Inc., is a 

nonprofit corporation whose principal purpose is to secure the 
civil and constitutional rights of black persons through litiga­
tion and education. The NAACP Legal Defense Fund has been praised 
for its legal work in support of civil and constitutional rights 
by the Supreme Court, N.A.A.C.P. v. Button, 371 U.S. 415, 421-22 
(1963) ( Defense Fund lawyers [have] a corporate reputation for
expertness in presenting and arguing the difficult questions of 
law that frequently arise in civil rights litigation"), by the 
Fifth Circuit, Bernard v. Gulf Oil Co., 619 F.2d 459, 470 (1980)
(en banc), affM, 452 U.S. 89 (1981), Miller v. Amusement Enter­
prises, Inc., 426 F .2d 534, 539 n.14 (1970), and by other courts, 

e • 9 • • Northcross v. Board of Ed., 611 F.2d 624, 637



(6th Cir. 1979), cert, denied, 447 U.S. 911 (1980), NAACP Legal 
Defense and Educational Fund, Inc, v. Campbell., 504 F.Supp. 1365, 
1368 (D.D.C. 1981) .

Legal Defense Fund lawyers have been counsel in many landmark 
cases establishing basic constitutional and statutory rights for 
black Americans. See, e.g., Brown v. Bd. of Education, 347 U.S.
438 (1954); Shelley v . Kraemer, 334 U.S. 1 (1948). Moreover,
Legal Defense Fund lawyers have been counsel in many of the cases 
establishing the basic principles of fair employment law. See,
§■•9-' 21199s v. Duke Power Co., 401 U.S. 424 (1971); Albemarle

Co- v - Moody> 422 U.S. 405 (1975), Franks v. Bowman Transpor­
tation Co., 424 U.S. 747 (1976). In particular, Legal Defense 
Fund lawyers have been counsel in cases establishing fundamental 
principles for application of the back pay remedy in the Supreme 
Court, Albemarle Paper Company v. Moody, supra, and in the Fifth 
Circuit, see, e.g., United States v. Georgia Power Co., 474 F.2d 
906 (1973), Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364
(1974) ; Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (1974), 
United States v. United States Steel Corporation, 520 F.2d 1043
(1975) , cert, denied, 429 U.S. 817 (1976), James v. Stockham 
Valves & Fittings, Inc., 559 F.2d 310 (1977), cert. denied,
434 U.S. 1034 (1978) .

Amicus believes that the Court's decision in the case at bar 
may affect its representation of minorities in future cases.
Amicus further believes that its experience in employment litiga­
tion will assist the Court in this case.

2



SUMMARY OF ARGUMENT

The district court without stating any reason reduced the 
back pay liability of the defendant Company by more than one- 
third by deducting from the back pay award the unemployment 
compensation benefits received by the victim of the Company's 
illegal racial discrimination.

The plain meaning of Title VII precludes the deduction of 
unemployment benefits from back pay awards. Moreover, the legis­
lative history makes clear that the Title VII provision was 
modeled upon the back pay provision of the National Labor Relations 
Act and that decisions under that Act are entitled to "great 
weight." The Supreme Court has stated that unemployment compen­
sation benefits received by the victims of unfair labor practices 
should not be deducted from their back pay awards. The same rule 
should apply to Title VII.

The deduction of unemployment compensation benefits from 
back pay awards conflicts with the law of this Circuit that 
Title VII should be given a "wide scope ... in order to remedy, as 
much as possible, the plight of persons who have suffered from 
discrimination...." Finally, the deduction of unemployment compen­
sation benefits undercuts the achievement of the purposes of 
I'itle VII as set forth by the Supreme Court in Albemarle Paper 
Company v . Moody.

3



ARGUMENT

AS A VICTIM OF THE COMPANY'S DISCRIMINATORY DISCHARGE,
PLAINTIFF BROWN IS ENTITLED TO RECEIVE AS BACK PAY ALL 
WAGES WHICH HE LOST AS A RESULT OF THE COMPANY'S 
DISCRIMINATION; AS A LAWBREAKER THE COMPANY MAY NOT 
HAVE THE GOVERNMET BENEFIT, UNEMPLOYMENT COMPENSATION,
RECEIVED BY BROWN USED TO REDUCE ITS LEGAL LIABILITY.
A . Issue and Factual Statement.
Seven weeks after he was hired by the Company plaintiff 

Brown, a black worker, was injured on the job. He was examined 
by a physician who found evidence of a concussion. The physician 
excused Brown from work for one week. Brown returned to work a 
day early but was promptly fired by a Company foreman allegedly 
because he failed to advise the Company of his status. Brown was 
not given any warning by the Company; he was peremptorily fired. 
"Uncontroverted evidence showed numerous instances in which white 
employees were given extensive warnings for precisely [the conduct 
for which the Company fired Brown]: failing to show up for work,
for extended periods, without prior notice by the employee."
Brown v. A. J. Gerrard Mfg. Co., 643 F.2d 273, 276 (5th Cir. 1981). 
Brown was the victim of racial discrimination; he received different 
and much harsher treatment because he was black.

Having determined that Brown was discharged illegally, the 
Court remanded the case to the district court for a determination 
of appropriate attorneys' fees and back pay. ^d. The issue of 
attorneys' fees is not before the Court.

The essential facts concerning back pay are not in dispute.
Mr. Brown was unemployed for 34 weeks after he was discriminatorily

4



discharged and before he was hired as a regular employee by 
another Company. The district court determined that he lost 
$2,930 in wages during this period. " [l]n its discretion" but 
without giving any reason, the district court reduced the 
plaintiff s actual loss for amounts received as unemployment 

compensation." Opinion, August 26, 1981. Since the plaintiff 
had received $962 in unemployment compensation, the district 
court reduced the lost wages, $2,930, to $1,968. The lower 
court then calculated 7% simple interest—^ and concluded that 
Mr. Brown was owed $3,074.67.

The issue before this Court is whether the district court 
had discretion to reduce the award by approximately one-third 
by deducting from the back pay the money paid through an Alabama 
unemployment compensation program. Alternatively, to state the 
issue from the perspective of the Company, did the district court 
properly provide the Company a "windfall" by reducing its back 
pay liability by one-third because the State of Alabama paid 
Mr. Brown unemployment compensation

_1/ The plaintiff had requested a rate of 8% compounded annually.
The plaintiff argued that this rate "is justified because of the sub­
stantial amount of inflation that has occurred since the plaintiff 
was denied wages in 1972 and early 1973." Motion for Entry of Judg­
ment. The plaintiff did not appeal from the district court's appli­cation of 7% simple interest.
2/ The bottom-line view of the Company's "windfall" is dramatic 
Mr. Brown lost $2,930 in 1972 and 1973 dollars because of the Company's 
invidious discrimination. In 1981 when the district court rendered 
its decision $1.97 was required to buy consumer goods that cost $1.00 
in 1972. Motion for Judgment. Accordingly, Mr. Brown's award of 
$3,074.67 was worth $1,568.08 in 1972 dollars. Thus the Company had 
to pay Mr. Brown in constant dollars only slightly more than one-half 
of the amount which ne lost due to the Company's discrimination.

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B .

A

The Language of Title VII and the Leqislative Historv 
Bar the Deduction of Unemployment CoiiinpnsaHnn in 
Calculation of an Award of Back Pay .j/' ~

The relevant provision of Title VII of the Civil Rights 
Act of 1964 (as amended 1972), 42 U.S.C. §2000e-5(g) reads in 
pertinent part:

If the court finds that the respondent has 
engaged in ... an unlawful employment 
practice ... the court may ... order such 
affirmative action as may be appropriate,
which may include ... back pay.__ Interim
earnings or amounts earnable with reasonable 

-*-9ence by the person or persons discrimi­nated against shall operate to reduce the 
back pay otherwise allowable.

Back pay" includes not only "straight salary" lost as a 
result of the unlawful practice but also "[i]nterest, overtime, 
shift differentials, and fringe benefits---" Pettway v. Ameri­
can Cast Iron Pipe Co., 494 F.2d, at 263. The statute provides 
for only two deductions from back pay —  "interim earnings" and 
"amounts earnable with reasonable diligence."

Of course, the Congress could have included "unemployment 
compensation" or other government benefits among those items to 
be deducted from back pay. However, Congress did not include 
unemployment compensation as an item to be deducted from back pay. 
There is no support in the statutory language for the deduction of 
unemployment compensation from back pay. In enacting Title VII, 
Congress had a far-reaching public policy: "The language of
Title VII makes plain the purpose of Congress to assure equality 
of employment opportunities and to eliminate those discriminatory

„Sef generally, Note, The Deduction of Unemployment Comoensatinn for Back-Pay Awards Under Title VII, 16 uT Mich. J L Rif' pen5atl°n
(TO bi-pubTTshedT7~ The Journ ha agreed't^iiSTThe final draft to counsel for all parties.

6



practices and devices which have fostered racially stratified job 
environments to the disadvantage of minority citizens...." 
McDonnell Douglas Corp. v. Green, 411 u.S. 792, 800 (1973). in 
applying a statute with a broad congressional purpose the courts 
should not unnecessarily create limitations to the application of 
the statute.

The legislative history of Title VII supports the plain 
meaning of the statute —  unemployment compensation may not be 
deducted from back pay. See e.g., Brown v. A. J. Gerrard Manu­
facturing Co., 695 F .2d 1290 (11th Cir . 1983) (rehear, en banc 
granted); EEOC v. Ford Motor Company, 645 F.2d 183 (4th Cir. 1981), 
rev on other grounds, 50 USLW 4937 (1982).

The Title VII back pay provision "was expressly modeled on 
the backpay provision of the National Labor Relations Act." 
(Footnote omitted). Albemarle Paper Co. v. Moody, 422 U.S. 405,

4 /419 (1975).- Moreover, as the Fifth Circuit has ruled, since

1

— / t*le Supreme Court stated, "[t]he framers of Title VII stated
!rafc Were using the NLRA provision as a model." Albemarle PaperCo_̂ , 422 U.S., at 419 n.ll. The "bipartisan captains," Senators  ̂
Clark and Case, responsible for Title VII during the Senate debate 
placed an interpretative memorandum in the Congressional Record.
The Supreme Court has determined that the comments in this document 
are authoritative indications of [conqressional] purpose." Team­
sters v United States, 431 U.S. 324, 352 (1977). The interpFetative memorandum states that

[t]he relief sought in such suits would be 
an injunction against future acts or prac­
tices of discrimination, but the court 
could order appropriate affirmative relief, 
such as hiring or reinstatement ... and the 
payment of back pay. This relief is similar 
to that available under the National Labor 
Relations Act in connection with unfair labor practices ....

110 Cong. Rec. 7 214 (1964).

7



" [t]he relief provisions in Title VII were modeled after a 
similar provision in the National Labor Relations Act ... great 
weight should be given to interpretations under the latter act." 
(Emphasis added). Johnson v. Goodyear Tire & Rubber Co.,
491 F.2d, at 1377 n.37; see also Pettway v. American Cast Iron
Pipe Co., 494 F.2d, at 252; United States v. Georgia Power Co., 
474 F . 2d, at 921 n.19.

As set forth in the panel opinion, 695 F .2d, at 1292, the 
leading case interpreting the application of back pay under the 
National Labor Relations Act is NLRB v. Gullett Gin Co.. 340 U.S. 
361 (1951). As the panel decision determined and as two other 
Circuits agree, the authoritative decision in Gullett Gin and 
Congress' intent to apply NLRA law to Title VII make clear that 
"unemployment benefits received by a successful plaintiff in 
an employment discrimination action are not offsets against a 
backpay award." (Footnote omitted). Kauffman v. Sidereal Corp..
695 F.2d 343, 347 (9th Cir. 1982); see EEOC v. Ford Motor Co., 
supra.

The specific issue presented in Gullett Gin was whether the 
NLRB had abused its discretion in refusing to order that the 
amounts received as unemployment compensation be deducted from a 
back pay award. However, the Supreme Court rejects unequivocally 
the arguments that have been advanced to support the discretionary 
deduction of unemployment compensation benefits from back pay 
awards. First, the Court dismisses the argument that the failure 
to deduct unemployment benefits would overcompensate the victim 
of the illegal act:

8



To decline to deduct state unemployment 
compensation benefits in computing back 
pay is not to make the employees more 
than whole .... Since no consideration 
has been given or should be given to 
collateral losses in framing an order 
to reimburse employees for their lost 
earnings, manifestly no consideration 
need be given to collateral benefits 
which employees may have received.
(Emphasis in original).

Gullett Gin Co., 340 U.S., at 364. Under Title VII as under 
the NLRA the victim of an illegal act may not claim recovery 
for a "collateral loss" resulting from a discriminatory discharge 
~ for example, from the repossession of a car or furniture or 

from the foreclosure on a mortgage resulting from the loss of 
regular earnings. Thus, as the Supreme Court states, "manifestly 
no consideration need be given to collateral benefits...." 
(Emphasis added), Id.

Second, the Court dismisses the theory that unemployment
compensation benefits are not collateral but direct benefits.

With this theory we are unable to agree.
Payments of unemployment compensation 
were not made to the employees by 
respondent but by the state out of 
state funds derived from taxation.
True, these taxes were paid by 
employers, and thus to some extent 
respondent helped to create the fund.
However, the payments to the employees 
were not made to discharge any liability 
or obligation of respondent, but to 
carry out a policy of social betterment 
for the benefit of the entire state.

Gullett Gin Co., 340 U.S., at 364. Moreover, in Alabama, as well
as in Alaska and New Jersey, the unemployment insurance taxes are
levied on employees as well as on employers. National Commission on

9



Unemployment Compensation, Unemployment Compensation: Final
Report (1980), p.18.-^

Third, the Court rejects the argument that the failure to 
deduct unemployment compensation imposes a "penalty" upon the 
employer .

[The employer] urges that the Board's 
order imposes ... a penalty which is 
beyond the remedial powers of the 
Board because, to the extent that 
unemployment compensation benefits 
were paid to its discharged employees, 
operation of the experience-rating record formula ... will prevent 
respondent from qualifying for a 
lower tax rate. We doubt that the 
validity of a back-pay order ought 
to hinge on the myriad provisions of 
state unemployment laws. However, 
even if the ... law has the conse­
quence stated ... this consequence 
does not take the order without the 
discretion of the Board to enter.
We deem the described injury to be 
merely an incidental effect of an 
order which in other respects 
effectuates the policies of the 
federal Act. It should be empha­
sized that any failure of respondent to qualify for a lower tax rate 
would not be primarily the result of 
federal but of state law, designed 
to effectuate a public policy with 
which it is not the Board's func­tion to concern itself.

Gullett Gin Co., 340 U.S., at 365. The state unemployment laws are
indeed "myriad." Unemployment Compensation; Final Report, supra,

5/ The cost of unemployment insurance taxes represents a labor 
cost to the employer and an insurance cost to the employees. The 
employee must forego higher current wages for the benefits afforded 
by unemployment insurance. In effect, the employees pay indirectly 
for the unemployment benefits even in states where the employers
pay all of the taxes for unemployment insurance by means of a oav- roll tax. ^ 1

10



at Appendix 13.4: "Significant Provisions of State Laws"(July 6,
1980) (Attachment A hereto). The experience-rating methods vary 
widely among the states. Some states base the rating upon benefit 
disbursements charged to individual employers, other states 
measure the experience-rating by declines in the employer's pay­
roll. United States Unemployment Insurance Service, Department 
of Labor, Comparison of State Unemployment Insurance Law,
§§220.01-.04 . Moreover, if an employer pays the maximum tax rate, 
which varies among the states, then additional benefit claims will 
not affect his rating. The implementation of the single national 
policy of ending employment discrimination should not depend upon 
the peculiarities of the various state statutory schemes for pro­
viding unemployment insurance.

Fourth, the Court approves its prior opinion, Marshall Field 
k-Co• v * NLRB, 318 U.S. 253 (1943), which "held that the benefits 
received by employees under a state unemployment compensation act 
were plainly not earnings which, under the Board's order in that 
case, could be deducted from the back pay awarded." Gullett Gin 
Co., 340 U.S., at 363.

The decision in Gullett Gin Co. makes clear that there is 
no basis for deducting unemployment compensation benefits from 
Title VII back pay awards. It is contrary to the intent of Congress 
to leave in place a legal standard that permits the deduction of 
unemployment benefits from back pay due to Brown because he was 
the victim of racial discrimination whereas there would be no 
such deduction if Brown was the victim of an unfair labor practice.

11



C . The Deduction of Unemployment Compensation Benefits 
from Back Pay Awards Conflicts with the Principles 
for the Application of Title VII Established by the Courts.

This Court has long recognized the critical role that the
back pay remedy plays in implementing the fair employment laws:

where employment discrimination has been 
clearly demonstrated ... victims of that 
discrimination must be compensated if 
financial loss can be established.
.... To implement the purposes behind 
Title VII, a court should give "a wide 
scope to the act in order to remedy, as 
much as possible, the plight of persons 
who have suffered from discrimination 
in employment opportunities."

Johnson v. Goodyear Tire & Rubber Co., 491 F . 2d at 1375; United 
States v. Georgia Power Co., 474 F.2d, at 921. Accordingly, the 
Fifth Circuit provided that " [ojnce a court has determined 
that a plaintiff or complaining class has sustained economic 
loss from a discriminatory employment practice, back pay should 
normally be awarded unless special circumstances are present." 
Pettway v. American Cast Iron Pipe Co., 494 F.2d, at 252-53.

Subsequent to these Fifth Circuit decisions which were criti­
cal to the development of fair employment law, the Supreme Court 
addressed the back pay issue. The Supreme Court's approach was 
similar to the approach taken by the Fifth Circuit. The Court 
stated the "obvious connection" between back pay and the purpose 
of Title VII "to achieve equality of employment opportunity." 
Albemarle Paper Company v. Moody, 422 U.S., at 417.

If employers faced only the prospect of an 
injunctive order, they would have little 
incentive to shun practices of dubious 
legality. It is the reasonably certain 
prospect of a backpay award that "provide [s]

12



the spur or catalyst which causes employers 
and unions to self-examine and to self- 
evaluate their employment practices and 
to endeavor to eliminate, so far as possible, 
the last vestiges of an unfortunate and 
ignominious page in this country's history."

Id., at 417-18, quoting United States v. N. L. Industries, Inc., 
479 F.2d 354, 379 (8th Cir. 1973). The Court also stated that 
it is "the purpose of Title VII to make persons whole for 
injuries suffered on account of unlawful employment discrimi­
nation." Albemarle Paper Company, 422 U.S., at 418. The Court 
adopted the following standard:

... given a finding of unlawful discrimina­
tion, backpay should be denied only for 
reasons which, if applied generally, would 
not frustrate the central statutory pur­
poses of eradicating discrimination 
throughout the economy and making persons 
whole for injuries suffered through past 
discrimination. (Footnote omitted).

Id. , at 421 .
After Albemarle Paper Company, the Fifth Circuit has con­

tinued to hold that unless special circumstances are present 
back pay should normally be awarded if a plaintiff has sustained 
economic loss from a discriminatory practice. See e.g., Marks v.
Pr attco, Inc., 607 F.2d 1153, 1155 (1979); Parson v. Kaiser 
Aluminum & Chemical Corp., 575 F.2d 1374, 1391 (1978); James v. 
Stockham Valves & Fittings, Inc., 559 F. 2d, at 357.

There are no "special circumstances" which would justify the 
denial of back pay or the partial denial of back pay by means of 
the deduction of unemployment compensation benefits. A general rule 
permitting the deduction of unemployment compensation benefits from 
back pay is inconsistent with the long-established principle of

13



the Fifth Circuit to give "a wide scope" to the remedy of back 
pay "in order to remedy, as much as possible, the plight of per­
sons who have suffered from discrimination in employment oppor­
tunities." Johnson, 491 F.2d, at 1375. A general rule permit­
ting the deduction of unemployment benefits from back pay is also 
inconsistent with each of the two purposes of back pay, "make 
whole" and "prophylactic," described by the Supreme Court.

Unemployment compensation does not substitute for lost wages. 
The $37 per week which Mr. Brown received in unemployment compen­
sation accounted for approximately 40% of his lost weekly wage. 
This proportion is consistent with the nation-wide average. 
Unemployment Compensation - Final Report, supra, p.16. For the 
unemployed, financial responsibilities —  family expenses, rent, 
car payments —  remain constant, but available incoming resources 
even with unemployment compensation fall sharply. Moreover, 
unemployment compensation, as was the case for Mr. Brown, may 
stop weeks or months before new employment is obtained. The 
drain on the substantially reduced resources may cause default 
on payments and additional financial loss, and frequently results 
in severe anxiety and family strain. See generally, J. Hayes &
P. Nutman, Understanding the Unemployed, pp.64-82 (1981) (Describ­
ing evidence of deterioration in mental and physical health as a 
result of unemployment).

Neither Mr. Brown nor any other Title VII plaintiff may 
recover under Title VII for these losses, pain and suffering. The 
victim of a tort or a contract violation which causes him to lose 
his job might recover in an action at law for losses flowing from 
unemployment. But the victim of racial discrimination is limited

14



to the equitable monetary remedy provided by Title VII and may 
not so recover. Unemployment compensation does not replace lost 
wages, it "is an insurance system, created to provide adequate 
benefits to tide workers over temporary periods of unemploy­
ment---," Unemployment Compensation - Final Report, supra, p.14.
It is, as the Supreme Court stated in Gullett Gin Co., "a policy 
of social betterment for the benefit of the entire state."
340 U.S., at 364.

It is anomalous for courts to deduct unemployment compensation 
from back pay recovery in order to prevent excess recovery since 
Title VII does not allow a plaintiff to recover all losses result­
ing from sudden unemployment. To permit the deduction of unemploy­
ment compensation would prevent the adequate compensation, "as much 
as possible," of discrimination victims, and thwart a basic purpose 
of Title VII.

In this case the deduction of unemployment compensation from 
the back pay remedy reduced the liability of the defendant by 
more than one-third. See p.5, supra. In fact, this deduction 
combined with the delay in payment and the low interest rate 
resulted in the defendant Company paying Mr. Brown in constant 
dollars approximately one-half of the amount of the earnings which 
Mr. Brown lost due to the Company's discrimination. See p.5 n.2, 
supra. The deduction of unemployment compensation from back pay 
may often, as here, significantly reduce the amount of back pay.
Thus, this deduction serves to lessen the effectiveness of the 
remedy to "provide the spur or catalyst which causes employers" to 
correct and eliminate discriminatory practices and to frustrate

15



the second fundamental purpose of Title VII.—^
CONCLUSION

The deduction of unemployment compensation from back pay
awards violates the fundamental "make whole" and "prophylactic"
purposes of Title VII. There is no reasoned basis for the
exercise of discretion to deduct unemployment compensation.

# Important national goals would be frus­
trated by a regime of discretion that 
"produce]d] different results for 
breaches of duty in situations that 
cannot be differentiated in policy."

Albemarle Paper Company, 422 U.S., at 417. This Court should adopt 
the rule followed by the Fourth (EEOC v. Ford Motor Co.) and the 
Ninth (Kauffman v. Sidereal) Circuits which precludes :the;deduction

— / ^  likely that in many states and in many circumstances the
payment of additional unemployment compensation benefits will not 
even increase a company's payroll tax for unemployment insurance.See p.ll, supra .
7/ Alternatively, the decision of the district court should be revers 
because the court did not properly exercise its discretion "in light of 
the large objectives" of Title VII. Albemarle Paper Co., 422 U.S.. at 
416. Moreover, the district court gave no reason for p’ar tially ’deny inq 
the back pay requested. "it is necessary ... that if a district court 
does decline to award backpay, it carefully articulate its reasons." Id., at 421 n . 1 4 .

of unemployment compensation from back pay awards
Respectfully submitted,

BAI
Suite 940
806 15th Street, N.W. 
Washington, D.C. 20005 (202) 638-3278
JACK GREENBERGSuite 2030
10 Columbus Circle
New York, New York 10019

16



ATTACHMENT A



Appendix 13.4: Significant Provisions of State Laws (July 6, 1980)

U S  D E P A R T M E N T  O F  L A B O R

V
E M P L O Y M E N T  A N D  T R A IN IN G  A D M IN IS T R A T IO N  

Unem ploym ent Insurance Service

’.W
Signif icant Provisions of State U n e m p lo ym en t  Insurance Laws, JULY 6, 1980

PREPARED FOR READY REFERENCE. CONSULT THE STATE LAW AND STATE EMPLOYMENT SECURITY AGENCY FOR AUTHORITATIVE INFORMATION

BENEFITS
- ------

COVERAGE
r

TAXES

Duration in 
52-week period

Size of 
firm (1 
worker in 
specified 
time and/ 
or size of 
payroll6

State

Qualifying 
wage or 

employment 
(number x 
wba or as 
indicated)*

Waiting
week2

Computation 
of wba 

(fraction of 
hqw or as 
indicated) '

Wba for 
total unem­
ployment ̂

Earnings
disre-
garded^

Proportion 
of base- 

period
wages^

Benefit 
weeks for 
total un­
employment^

1979 Tax 
rates (per­
cent of awages)

Min. Max. Min? Max. Min. Max.

Ala. 1-1/2 x hqw; 
not less 
than $522.01

0 1/24 $15 S90 $6 1/3 11 + 26 20 weeks 91.0 94.0

Alaska $750; $100 
outside HQ

1 2.3-1.1% of 
annual 
wages. +
$10 per 
dep. up to 
$30

18-29 90-120 Greater of 
$10 or
1/2 basic 
wba

6 34-31» 14 28 Any time 9
2.6 V i

Ariz. 1-1/2 x hqw; 
$725 in HQ

1 1/25 29 95 $15 1/3 12+ 26 20 weeks 0.15 3.50

Ark. 30; wages in 
2 quarters

1 1/26 up to 
66-2/3% of 
State aww

15 136 2/5 1/3 10 26 10 days 0.5 4.4

Calif. $900 1 1/25-1/34 30 120 Lesser of 
S25 and 
25% of 
wages

1/2 ?12+-1! 726 Over $100 
in any 
quarter

9 1.3 4.8

Colo. 30 1 60% of 1/13 
of claimant's 
hqw up to 
50% of State 
aww

25 150 1/4 wba 1/3 7+-10 26 13 weeks 
or $500 
in CQ

0.2 4.0

Conn. 40 0 1/26, up to 
60% of 
State aww 
♦ $5 per 
dep. up to 
1/2 wba

15-22 134-184 1/3 wages Uniform ?26 726 20 weeks 1.5 6.0

Del. 36 0 1/26, up to 
66-2/3% o f .  
State aww— /

20 150 Greater of 
$10 or 30% 
of wba

1/2 11-18 1/ 26 20 weeks 1.6 4.5

D.C. 1-1/2 x hqw; 
not less 
than $450; 
$300 in 1 
quarter

1/23 up to 
66-2/3% of 
State aww 
♦ $1 per 
dep. up to 
$3*

13-14 4181 1/5 wages 1/2 17+ 34 Any time 1.0 5.4

Fla. 20 weeks 
employment 
at average 
of $20 or 
more

1 1/2 claim­
ant's aww

10 95 55 1/2 weeks 
employment

10 26 20 weeks 0.4 4.5

Ga. 1-1/2 x hqw 21 I/25+$1.00 27 90 58 1/4 4 26 20 weeks 0.07 5.71

Hawaii 30; 14 weeks
employment

101 1/25 up to 
66-2/3% of 
State aww

5 144 $2 Uniform ?26 ?26 Any time 91.8 94.5

-'Vv..

234



i , BEN.:fit s I COVERAGE

Duration in
Qualifying 
wage or 

employment 
(number x 
wba or as 
indicated)^

52-week period

state
Waitir
week2

Computation 
g of wba

(fraction of 
hqw or as
indicated/'*

Wba
tota
plo

for
L unen- 
^ment4

Earnings 
disre­
garded ̂

Proportion 
of base- 

period 
wages ̂

Benefit 
weeks for 
total un­
employment^

1 Sire of 
• firm (1 
worker in 
specified 
time and/

1979 Tax 
rates (per­
cent of 
wages) 9

Min. Max. Min? Max. | payroll6 Min. Max.

Idaho 1-1/4 x hqw; 
not less 
them
$910.01 in 
1 quarter; 
wages in 2 
quarters

1 1/26 up to 
60% of 
State aww.

S36 $132 1/2 wba Weighted 
schedule 
of bpw in 
relation 
to hqw

10 26 20 weeks or 
$300 in 
any quarte

90. 9 

r

94.0

111. $1,400; $385 
outside HQ

10 1 claimant 
aww up to 
50% of 13 
State aww

15 135-18 0 57 Uniform 26 26 20 weeks 9 0.1 94.0

Ind. 1-1/4 x hqwj 
not less

1 4.3% of high 40 84-141 20% of wba 1/4 3+ 26 20 weeks 0.3quarter Z/
than $1,500; wage credit than BP
2 quarters employer

i

Iowa 3 - l./4xhqw 
$200 in qtr

0 i/ W 17-18 134-162 1/4 wba 1/3 15 26 20 weeks 90.6 Y o
other than

*
HQ

Fans. 30; wages in 
2 quarters

1 4.25% of HQW 
up to 60% of

34 136 $8 1/3 10 26 20 weeks 0 3.5
State aww

Ky. 1-3/8 x how; 8 
x wba in ‘last 
2 cuarters;

0 1/23 up to 
55% of

22 120 1/5 wages 1/3 15 26 20 weeks 0.5 5.0
CSG0 in 1 quarter and 
$500 in other

State aww

quarters
14/

1/20-1/25La. .30 101 10 149 1/2 wba 2/5 12 28 20 weeks 1.63 4.53Maine 2 x annual 0 1/22 up to 12-17 104-156 sio 1/3 13+-25 26 20 weeks 2.4aww in each 52% of State
of 2 qtrs. aww +$5 per
t 7 x annual dep. to 1/2
aww in HP wba

Md. 1-1/2 x hqw; 
$576.01 in

0 1/24 + $3 
per dep. up

25-28 *120 $10 Uniform 26 26 Any time 3.1 5.0
1 quarter; 
wages in 2 
quarters

to $12

Mass. 30; not less 
than $1,200

1 1/21-1/26 
up to 57.5%

12-16 131-197 40% not 
less than

36% 9+-30 30 13 weeks 2.6 6.4
of State $10 noraww, + $6 more than
per dep. up 
to 1/2 wba3

$30

Mich. 14 weeks 
employment 
at $25.01

0 60% of 
claimant's 
aww up to

416-18 97-136 Up to 1/2 
wba^

3/4 weeks 
employment

11 26 20 weeks or 
$1,000 in 
CY

1.0 8.0

or more $97 with 
variable 
max. for 
claimants
with dep.3

Minn. L5 weeks
employment 
at $50 or

101 ±3/ 30 162 $25 /10 weeks 
employment

13 26 20 weeks 91.0 7.5

more

Miss. 6; $160 in 
1 quarter;

1 1/26 10 90 55 1/3 12 26 20 weeks 2.6 2.7
wages in 2 
quarters

1

235



BENEflTS COVERAGE TAXES

Duration in 
52-week period

Qualifying
wage or Computation Proportion Benefit firm (1 1979 Tax

employment Waiting of wba Wba for Earnings of base- weeks for worker in rates (per-
State (number x week5 (fraction of total unco- dlfcre- period

wages®
total un- specified cent of

hqw or as ployroent' garded5 employment time and/ wages)
indicated^ *indicated)

Min. Max. Min? Max. payrol^6 Min. Max.

Mo. 30 x wba; |30C 101 4.5% $15 105 $10 1/3 10-13+ 26 20 weeks 0.5 3.2
in 1 quarteri 
wages in 2 
quarters

Mont. 20 weeks 1 1/2 wks. of 
claimant's 
employment

30 131 1/2 wages Weighted 8 26 Over $500 in >1.9 94.4
employment 
at $50 or 
more

in excess
of 1/4 
wbs

schedule 
of bpw in 
relation 
to hqw

preceding
year

Neb. $600; $200 1 1/19-1/23 12 106 Up to 1/2 1/3 17 26 20 weeks 0.1 2.7
in each of 
2 quarters

wba

Nev. 1-1/2 x hqw 0 1/25, up to 16 123 1/4 wages 1/3 11 26 $225 in any 9i.i 93.5
50% of 
State aww

quarter

N.H. 51,200; $600 0 1.8-1.2% of 21 114 1/5 wba Uniform 26 26 20 weeks .05 6.5
in each of annual
2 quarters wages

N-J. 20 weeks 101 66-2/3% of 20 123 Greater of 3/4 weeks 15 26 $1,000 in 9i . 2 96.2
employment claimant's $5 or 1/5 employment any year 1

»t $30 or aww up to wba
more; or 50% of
$2,200 State aww

::.Mex. 1-1/4 x hqw 1 1/26; not 22 106 1/5 wba 3/5 18+ 26 20 weeks or 90.9 * 5
less than $450 in an}
10% nor more 
than 50% of 
State aww

quarter

N.Y. 20 weeks 121 67-50% of 25 125 (12) Uniform 26 26 $300 in any 1.8 5.5
employment claimant * s quarter
at average 
of $40 or

aww

11

N.C. 1-1/2 x hqwj 1 1/26 up to 15 130 1/2 wba 1/3 bpw 13 26 20 weeks 0.1 5.7
not less 66-2/3% of
than
$565.50; 
$150 in 1 
quarter

State aww

N.Dak. 40 x min. wba, 1 1/26 up to 39 143 1/2 wba Weighted
schedule 12 26 20 weeks 90.3 94.8

wages in 67% of of bpw in
2 quarters State aww relation 

to hqw
Ohio 20 weeks 1°1 l/2 claimant’s 10 128-202 1/5 wba 20 x wba +• 20 26 20 weeks .9 4.6

employment aww d . a. wba for
at $20 or of $1-74 each credit
more based on week in

claimant's excess of
aww and
number of

20

dep. 1/17/

Okla. 1-1/2 x hqw; 1 1/25 up to 16 156 $7 1/3 20+ 26 20 weeks 0.6 4.7
not less 66-2/3% of
than $1,000 
in BP; 
$6,000

State aww

Oreg. 18 weeks 1 1.25% of bpw 38 138 1/3 wba 1/3 6 26 18 weeks or 92.6 94.0
employment up to 55% $225 in
at average
of $20 or 
more; not 
less than 
$700

of State aww any quarter

236



1

P . R.

BENEFITS

Qualifying 
wage or 

*»rnp logmen t 
(number x 
wba or at 
indicated)1

32 + -36; 
$120 in HQ 
and $440 in 
BP; at 
loast 20% 
of bpw 
outside HQ

21 + -30; 
not lass 
than $280; 
$75 in 1 
quarter; 
wages in 
2 quarters

20 weeks 
employment 
at $58 or 
more; or 
$3,480

1-1/2 x hqw; 
now less 
than $300; 
$180 in 1 
quarter

$600 in HQ;
20 x wba 
outside HQ

36; $494.01 
.in 1 quarter

1-1/2 x hqw; 
not less 
than $500 or 
2/3 FICA 
tax base

19 weeks 
employment 
at $20 or 
more; not 
less than 
$700

26+-30; not 
less than 
S99 in 1 
quarter and 
wages in 2 
quarters

20 weeks 
employment 
at $35 or 
more

36; wages in 
2 quarters

Waiting
week^

Computation 
of wba 

(fraction of 
hqw or as 
indicated) 1 , 2

10,

Wash. 680 hours

1/20-1/25 up 
to 66-2/3% 
of State 
aww + $5 
for 1 dep; 
$3 for 2d

1/11-1/26; 
up to 50% 
of State 
aww

55% of claim­
ant's aww 
up to 60% of 
State aww, + 
$5 per dep. 
up to $20

1/26 up to 
66-2/3% of 
State aww

1/22 up to 
62% of 
State aww

1/26-1/31 

17

Wba for 
total unem­
ployment4*

Earnings
disre­
garded5

Min.

1/25

1/26 up to 
65% of 
State aww

1/23-1/25

1/2 claim­
ant's aww 
for highest 
20 weeks up 
to 60% of 
State aww

1/25

1/25 of aver­
age of 2 
highest 
quarter wages 
up to 55% of 
State aww

32-37

28

Max.

S162-170 Greater of 
$6 or 40% 
wba

130-150

114

119

n o

$5

1/4 woa

1/2 wages 
up to 1/2 
wba

$20

Greater of 
$5 or 1/4 
wba

Duration in 
52-week period

Proportion 
of base- 
periog 
wages

Benefit 
weeks for 
total un­
employment

8

Uniform

Uniform

150 I .

90

3/10 wba 
than 
regular 
employer

1/4 wages 
in excess 
of $5

3/5 weeks 
employment

1/3

30

1/3

1/3

12

10

Size of 
firm (1 
worker in 
specified 
time and/ 
or 3ize of 
payroll)16

1979 Tax 
rates (per­
cent ofg 
wages)*

Any time

20 Any time

26

13+ 26

38 122

150

$15 + $3 
for each 
dep. up 
to $5

Greater of 
1/3 wba or 
$10

$5 + 1/4 
wages

Weighted 
schedule 
of bpw in 
relation tc 
hqw

1 0 -2 2

26

1/3

1/3 8+-25+

Any time

20 weeks

20 weeks

20 weeks

20 weeks

$140 in CQ 
in current 
or preced­
ing CY

Any time

1.0

92.95 $2.

4.0

9 192.2 4.0

1.3 4.10

20 weeks

Any time

1.3

1-7 6.0

2 . 8

3.3

237



I

4

BENEFITS COVERAGE TAXES

Qualifying 
waga or 
employment 
(number x 
wba or aa . 
indicated)

Duration in 
52-week period

State
Waiting
veek^

Computation 
of wba 

(fraction of 
hqw or at 
indicated) '

Wba for 
total unem­
ployment*

Earnings
disre-5
garded

Proportion 
of base- 

period 
wages^

Benefit 
weeks for 
total un- 7 
employment

firm (1 
worker in 
specified 
time and/ 
or size of 
payroll)

1979 Tax 
rate* (per­
cent of^ 
wages)

Min. Max. Min.8 Max. Min. Max.

Vf .Va. $1,150 
and wages 
in 2
quarters

2i 1.5-1.0% of 
annual wages 
up to 
70% of 
State aww

18 184 $25 Uniform 28 28 20 weeks 0 3.3

Wise. 15 weaks
employment; 
average of 
$56.01 or 
more with 1 
employer

0 50% of claim­
ant 's aww up 
to 66-2/3% 
of State aww

30 160 Up to 1/2 
wba

8/10 weeks 
employment

1-12+ 34 20 weeks 0.5 6.5

Wyo. 1-6/10 x hqw; 
not less 
than $600 
in 1 quarter

1 1/25 up to 
55% of Stata 
aww

24 146 Greater of 
$15 or 
25% wba

3/10 12-26 26 $500 in 
current or 
preceding_ex___

0.37 3.07 1
i

eekly benefit amount abbreviated In columns and footnotes as 
vba; base period* BP; base-period wages, bpw; high quarter, HQ; 
hlgh-quarter wages, hqw; average weekly wage, aww; benefit year, 
BY; calendar quarter, CQ; calendar year, CY; dependent, dep.; 
dependents allowances, da.; minimum, min.; maximum, max.

^Unless otherwise noted, waiting period same for total or 
partial unemployment. W.Va., no waiting period 
required for partial unemployment. Waiting period may be 
suspended if Governor declares State of emergency following 
disaster, N.Y., R. I, In Ca. no waiting week if claimant 
unemployed not through own fault.

^When States use weighted high-quarter, annual-wage, or average 
weekly-wage formula, approximate fractions or percentages figured 
at midpoint of lowest and highest normal wage brackets. When 
da provided, fraction applies to basic wba. In States noted 
variable amounts above max. basic benefits limited to claimants 
with specified number of dep. and earnings in excess of amounts 
applicable to max. basic wba. In Ind. da. paid only to 
claimants with earnings in excess of that needed to qualify for 
basic wba and who have 1-4 deps. In Iowa, Mich, and Ohio 
claimants ray be eligible for augmented amount at all benefit 
levels but benefit amounts above basic max. available only to 
claimants in dependency classes' whose hqw or aww are higher than 
that required for max. basic benefit. In Mass. for claimant with 
aww in excess of $66 wba computed at 1/52 of l  highest quarters 
of earnings or 1/26 of highest quarter if claimant had no more 
than 2 quarters work.

*When 2 amounts given, higher includes da. Higher for min. wba 
includes max. allowance for one dep.; Mich, for 1 dep. child or 
2 dep. other than a child. In D.C. and Md., same max. with or 
without dep.

"*In computing wba for partial unemployment, in States noted full 
wba paid if earnings are less than 1/2 wba; 1/2 wba if earnings 
ars 1/2 wba but less than wba.

a
For claimants with min. qualifying wages and min. wba. When 
two amounts shown, range of duration applies to claimants 
with min. qualifying wages in BP; longer duration applies with 
min. wba; shorter duration applies with max. possible concen­
tration of wages in HQ,; therefore highest wba possible for 
such BP earnings. Minimum in Del, applies to seasonal employ­
ment. Vis. determines entitlement separately for each employer. | 
Lower end of range applies to claimants with only 1 week of work 
at qualifying wage; upper end to claimants with 15 weeks or more 
of such wages, 
q̂Represents min.-max. rates assigned employers in CY 1979. Ala., 
Alaska, N.J. require employee taxes. Contributions for 1980 
required on wages up to $6,000 in all States except 111., $6,500; 
Ala. , $6,600; JTJ. , $6,900; N.Mex. , and R.I., $7,200TTova, $7,400; 
Mont., and N.Dak., $7,600; Nev., $7,900; Minn.. $8,000; Wash., 
59,600; Alaska and Oreg., $lO,000; Idaho, $10,800; Utah, $11,000: 
Hawaii, $11,200; P.RT all wages.
^^Waiting period compensable if claimant entitled to 12 con­
secutive weeks of benefits immediately following, Hawaii; 
unemployed at least 6 weeks and not disqualified. La.; after 
9 consecutive weeks benefits paid. Mo.; when benefits are 
payable for third week following waiting period, N. J .; 
after benefits paid 4 weeks, Tex., Va.; after any 4 weeks 
in BY, Minn.; after 3d week unemployment. 111.; after 
3d week of total unemployment, Ohio.

**0r 15 weeks in last year and 40 weeks in last 2 years of aww 
of $40 or more, N.Y. »

12For N.Y., waiting period is 4 effective days accumulated in 
1-4 weeks; partial benefits 1/4 wba for each 1 to 3 effective 
days. Effective days: fourth and each subsequent day of total 
unemployment in week for which not more than $125 is paid.
*^To 602 State aww if claimant has nonworking spouse;
66-2/32 if he had dep. child-, 111.; 1/19-1/23 up to 582 of State 
aww for claimants with no dep. variable max., up to 702 of State 
aww for claimants with dep., Iowa.; 602 of first $85,402 of next 
$85, 502 of balance. Max. set at 66-2/32, Minn.

^States noted have weighted schedule with percent of benefits 14Up to 66-2/3% of State aww. La. 63% until 1981, Del.
based on bottom of lowest and highest wage brackets.

^Benefits extended under State program when unemployment in State 
reaches specified levels: Calif., Hawaii, by 502; Conn, by 13 
weeks. In P.R. benefits extended by 32 weeks in certain indus­
tries, occupations or establishments when special unemployment 
situation exists. Benefits also may be extended during periods 
of high unemployment by 502, up to 13 weeks, under Federal-State 
Extended Compensation Program.

^ $1,500 in any CQ in current or preceding CY unless otherwise 
specified.

^Max. amount adjusted annually: by same percentage increase
as occurs in State aww (Ohio) by $7 for each $10 increase in 
average weekly wage of manufacturing production workers (Texas).

O U  1 •••

238

y*.:



CERTIFICATE OF SERVICE

I hereby certify that on the 6th day of May 1983 I served 
a copy of the Motion of the NAACP Legal Defense and Educational 
Fund, Inc. to File a Brief As Amicus Curiae and the Brief of 
the NAACP Legal Defense and Educational Fund, Inc., As Amicus 
Curiae on all parties by depositing copies of the Brief and 
Motion in the United States mail, postage prepaid, upon the 
following counsel:

Bryant A. Whitmire, Esquire 
WHITMIRE, COLEMAN & WHITMIRE 
903 City Federal Building 
Birmingham, Alabama 35203
Robert L. Wiggins, Jr., Esquire Suite 716
Brown-Marx Building 
2000 1st Avenue North 
Birmingham, Alabama 35203
Philip Sklover, Esquire
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Room 2293
2401 E Street, N.W.
Washington, D.C. 20506