Johnson, Jr. v. Railway Express Agency, Inc. Opinion

    (Slip Opinion)

N O T E : W here i t  is feasible, a  syllabus (headnote) w ill be re­
leased, as is being done in connection w ith th is  case, a t  the  tim e 
th e  opinion is issued. The syllabus constitu tes no p a r t of th e  opinion 
of the  C ourt b u t has been prepared  by th e  R eporter of Decisions for 
the  convenience of th e  reader. See United S ta tes  v. D etroit Lum ber 
Co., 200 U.S. 321, 337.

SUPBEME COUET OF THE UNITED STATES
Syllabus

JOHNSON v. RAILWAY EXPRESS AGENCY, 
INC., ET AL.

CERTIORARI TO THE UNITED STATES COURT OP APPEALS FOR 
T H E  SIX TH  CIRCUIT

No. 73-1543. Argued December 11, 1974—Decided May 19, 1975

The timely filing of an employment discrimination charge with the 
Equal Employment Opportunity Commission, pursuant to § 706 
of Title VII of the Civil Rights Act of 1964, does not toll the 
running of the limitation period applicable to an action, based on 
the same facts, brought under 42 U. S. C. § 1981. Thus, in this 
case where petitioner waited , over three and one-half years after 
his cause of action for racial employment discrimination accrued 
before instituting an action under 42 U. S. C. § 1981, that suit is 
time barred by the one-year limitation period imposed by appli­
cable state law notwithstanding the fact that petitioner had filed 
the Title VII charge before that limitation period had expired. 

489 F. 2d 525, affirmed.

Blackmun, J., delivered the opinion of the Court, in which 
Burger, C. J., and Stewart, White, Powell, and Rehnquist, JJ., 
joined. Marshall, J., filed an opinion concurring in part and dis­
senting in part, in which Douglas and Brennan, JJ., joined.



NOTICE : This opinion is subject to form al revision before publication 
m  the  prelim inary p rin t of the United S tates Reports. Readers are re­
quested to notify the Reporter of Decisions, Supreme Court of the 
United S tates, W ashington, D.C. 20543, of any typographical or other 
form al errors, in order th a t  corrections may be made before the  pre­
lim inary p rin t goes to press.

SUPREME COURT OF THE UNITED STATES

No. 73-1543

Willie Johnson, Jr., 
Petitioner, 

v.
Railway Express Agency, 

Inc., et al.

On Writ of Certiorari to the 
United States Court of Ap­
peals for the Sixth Circuit.

[May 19, 1975]

M r. J ustice  B lackm un  delivered th e  opinion of the 
Court.

This case presents the issue whether the timely filing 
of a charge of employment discrimination with the Equal 
Employment Opportunity Commission (EEOC), pursu­
ant to § 706 of Title VII of the Civil Rights Act of 1964, 
42 U. S. C. § 2000e-5, tolls the running of the period of 
limitation applicable to an action, based on the same 
facts, instituted under 42 U. S. C. § 1981.

I
Petitioner, Willie Johnson, Jr., is a Negro. He started 

to work for respondent, Railway Express Agency, Inc., 
now, by change of name, REA Express, Inc. (REA), in 
Memphis, Tennessee in the spring of 1964 as an express 
handler. On May 31, 1967, while still employed by REA, 
but now as a driver rather than as a handler, petitioner, 
with others, timely filed with the EEOC a charge that 
REA was discriminating against its Negro employees 
with respect to seniority rules and job assignments. He 
also charged the respondent unions, Brotherhood of Rail­
way Clerks Tri-State Local and Brotherhood of Railway 
Clerks Lily of the Valley Local, with maintaining racially



2 JOHNSON v. RAILWAY EXPRESS AGENCY

segregated memberships (white and Negro respectively). 
Three weeks later, on June 20, REA terminated peti­
tioner’s employment. Petitioner then amended his 
charge to include an allegation that he had been dis­
charged because of his race.

The EEOC issued its “Final Investigation Report” on 
December 22, 1967. App. 14a. The report generally 
supported petitioner’s claims of racial discrimination. It 
was not until more than two years later, however, on 
March 31, 1970, that the Commission rendered its de­
cision finding reasonable cause to believe petitioner’s 
charges. And 9% more months went by before the 
EEOC, on January 15, 1971, pursuant to 42 U. S. C. 
§ 2000e-5 (e), as it then read, gave petitioner notice of 
his right to institute a Title VII civil action against the 
respondents within 30 days.1

After receiving this notice, petitioner encountered some 
difficulty in obtaining counsel. The United States Dis­
trict Court for the Western District of Tennessee, on 
February 12, 1971, permitted petitioner to file the right- 
to-sue letter with the court’s clerk as a complaint, in 
satisfaction of the 30-day requirement. The court also 
granted petitioner leave to proceed in forma pauperis 
and it appointed counsel to represent him. On March 
18, counsel filed a “Supplemental Complaint” against 
REA and the two unions, alleging racial discrimination 
on the part of the defendants, in violation of Title VII 
of the 1964 Act and of 42 U. S. C. § 1981. The unions 
and REA respectively moved for summary judgment or, 
in the alternative, for dismissal of all claims.

The District Court dismissed the § 1981 claims as 1

1 The applicable statute later was amended to allow a period of 
90 days, after issuance of the notice, in which to bring the Title YII 
action. 42 U. S. C. § 2000e—5 (f) (1), as amended by Pub. L. 
92-261, §4 (a), 86 Stat. 104, 106 (1972).



JOHNSON v. RAILWAY EXPRESS AGENCY 3

barred by Tennessee’s one-year statute of limitations. 
Tenn. Code § 28-304.2 Petitioner’s remaining claims 
were dismissed on other grounds.3

In his appeal to the United States Court of Appeals 
for the Sixth Circuit, petitioner, with respect to his § 1981 
claims, argued that the running of the one-year period 
of limitation was suspended during the pendency of his 
timely filed administrative complaint with the EEOC 
under Title VII. The Court of Appeals rejected this 
argument. 489 F. 2d 525 (1973). See also Jenkins v. 
General Motors Corp., 354 F. Supp. 1040, 1045-1046 
(Del. 1973). Because of an apparent conflict between 
that ruling, and language and holdings in cases from 
other circuits,4 we granted certiorari restricted to the

2 “28-304. Personal tort actions—Malpractice of attorneys— 
Civil rights actions—Statutory penalties.—Actions for libel, for 
injuries to the person, false imprisonment, malicious prosecution, 
criminal conversation, seduction, breach of marriage promise, actions 
and suits against attorneys for malpractice whether said actions are 
grounded or based in contract or tort, civil actions for compensa­
tory or punitive damages, or both, brought under the federal civil 
rights statutes, and actions for statutory penalties shall be com­
menced within one (1) year after cause of action accrued.”

3 The District Court also based its dismissal of petitioner’s § 1981 
claim against REA on the alternative ground that he had failed to 
exhaust his administrative remedies under the Railway Labor Act, 
45 U. S. C. c. 8. App. 102a. The Court of Appeals did not address 
the exhaustion argument. Inasmuch as we limited our grant of 
certiorari to the limitation issue, 417 U. S. 929 (1974), we have 
no occasion here to express a view as to whether a § 1981 claim of 
employment discrimination is ever subject to a requirement that 
administrative remedies be exhausted.

The claims against the unions were dismissed on res judicata 
grounds. App. 101a. The Court of Appeals agreed with that 
disposition. 489 F. 2d 525, 530 n. 1 (CA6 1974). This issue, also, 
was not included in our grant of certiorari.

4 See, e. g., Boudreaux v. Baton Rouge Marine Contracting Co., 
437 F. 2d 1011, 1017 n. 16 (CA5 1971); Macklin v. Spector Freight



4 JOHNSON v. RAILWAY EXPRESS AGENCY

limitation issue. We invited the Solicitor General to file 
a brief as amicus curiae expressing the views of the 
United States. 417 U. S. 929 (1974).

II
A. Title VII of the Civil Rights Act of 1964 was en­

acted “to assure equality of employment opportunities 
by eliminating those practices and devices that discrimi­
nate on the basis of race, color, religion, sex, or national 
origin.” Alexander v. Gardner-Denver Co., 415 U. S. 
36, 44 (1974). It creates statutory rights against invid­
ious discrimination in employment and establishes a 
comprehensive scheme for the vindication of those rights.

Anyone aggrieved by employment discrimination may 
lodge a charge with the EEOC. That Commission is 
vested with the “authority to investigate individual 
charges of discrimination, to promote voluntary compli­
ance with the requirements of Title VII, and to institute 
civil actions against employers or unions named in a dis­
crimination charge.” Ibid. Thus, the Commission itself 
may institute a civil action. 42 U. S. C. (1970 ed., 
Supp. I l l )  § 2000e-5 (f)(1). If, however, the EEOC is 
not successful in obtaining “voluntary compliance” and, 
for one reason or another, chooses not to sue on the 
claimant’s behalf, the claimant, after the passage of 180 
days, may demand a right-to-sue letter and institute the 
Title VII action himself without waiting for the comple­
tion of the conciliation procedures. 42 U. S. C. (1970 
ed., Supp. I l l )  §2000e-5 (f)(1). See H. R. Rep. No. 
238, 92d Cong., 2d Sess., 12 (1971); McDonnell Douglas 
Corp. v. Green, 411 U. S. 792 (1973).

In the claimant’s suit, the Federal District Court is 
empowered to appoint counsel for him, to authorize the

Systems, Inc., 156 U. S. App. D. C. 69, 84-85, n. 30, 478 F. 2d 979, 
994^995 n. 30 (1973).



JOHNSON v. RAILWAY EXPRESS AGENCY 5

commencement of the action without the payment of 
fees, costs, or security, and even to allow an attorney’s 
fees. 42 U. S. C. (1970 ed., Supp. I l l )  § 2000e-5 (f)(1) 
and 42 U. S. C. § 2000e-5 (k). Where intentional engage­
ment in unlawful discrimination is proved, the court 
may award backpay and order “such affirmative action 
as may be appropriate.” 42 U. S. C. (1970 ed., Supp. 
I l l )  § 2000e-5 (g). The backpay, however, may not be 
for more than the two-year period prior to the filing of 
the charge with the Commission. Ibid. Some district 
courts have ruled that neither compensatory nor puni­
tive damages may be awarded in the Title VII suit.5 6

Despite Title VIPs range and its design as a compre­
hensive solution for the problem of invidious discrimina­
tion in employment, the aggrieved individual clearly is 
not deprived of other remedies he possesses and is not 
limited to Title VII in his search for relief. “ [T]he 
legislative history of Title VII manifests a congressional 
intent to allow an individual to pursue independently 
his rights under both Title VII and other applicable 
state and federal statutes.” Alexander v. Gardner- 
Denver Co., 415 U. S., at 48. In particular, Congress 
noted “that the remedies available to the individual 
under Title VII are coextensive with the indivdual’s 
[sic] right to sue under the provisions of the Civil Rights 
Act of 1866, 42 U. S. C. § 1981, and that the two pro­
cedures augment each other and are not mutually exclu­
sive.” H. R, Rep. No. 238, 92d Cong., 1st Sess., 19 
(1971). See also S. Rep. No. 415, 92d Cong., 1st Sess., 
24 (1971). Later, in considering the Equal Employ-

5 Loo v. Gerarge, 374 F. Supp. 1338, 1341-1342 (Haw. 1974); 
Howard v. Lockheed-Georgia Co., 372 F. Supp. 854, 855-856 (ND 
Ga. 1974); Van Hoomissen v. Xerox Corf., 368 F. Supp. 829, 835- 
838 (ND Cal. 1973). Cf. Humphrey v. Southwestern Portland
Cement Co., 369 F. Supp. 832, 842-843 (WD Tex. 1973), rev’d on 
other grounds, 488 F. 2d 691 (CA5 1974).



6 JOHNSON v. RAILWAY EXPRESS AGENCY

ment Opportunity Act of 1972, the Senate rejected an 
amendment that would have deprived a claimant of any 
right to sue under § 1981. 118 Cong. Rec. 3371-3373
(1972).

R. Title 42 U. S. C. § 1981, being the present codifica­
tion of § 1 of the century-old Civil Rights Act of 1866, 
14 Stat. 27, on the other hand, on its face relates pri­
marily to racial discrimination in the making and en­
forcement of contracts. Although this Court has not spe­
cifically so held, it is well settled among the federal 
courts of appeals 6—and we now join them—that § 1981 
affords a federal remedy against discrimination in private 
employment on the basis of race. An individual who 
establishes a cause of action under § 1981 is entitled to 
both equitable and legal relief, including compensatory 
and, under certain circumstances, punitive damages. 
See, e. g., Caperci v. Huntoon, 397 F. 2d 799 (CA1), cert, 
denied, 393 U. S. 940 (1968); Mansell v. Saunders, 372 
F. 2d 573 (CA5 1967). And a backpay award under 
§ 1981 is not restricted to the two years specified for 
backpay recovery under Title VII.

Section 1981 is not coextensive in its coverage with 
Title VII. The latter is made inapplicable to certain 
employers. 42 U. S. C. §2000e(b). Also, Title VII 
offers assistance in investigation, conciliation, counsel, 
waiver of court costs, and attorney’s fees, items that are 
unavailable at least under the specific terms of § 1981.

0 Young v. International Tel. & Tel. Co., 438 F. 2d 757 (CA3 
1971); Brown v. Gaston County Dyeing Machine Co., 457 F. 2d 
1377 (CA4), cert, denied, 409 U. S. 982 (1972); Caldwell v. Na­
tional Brewing Co., 443 F. 2d 1044 (CA5 1971), cert, denied, 405 
U. S. 916 (1972); Long v. Ford Motor Co., 496 F. 2d 500 (CA6 
1974); Waters v. Wisconsin Steel Works, 427 F. 2d 476 (CA7), cert, 
denied, 400 U. S. 911 (1970); Brady v. Bristol-Meyers, Inc., 459 
F. 2d 621 (CA8 1972); Macklin v. Spector Freight Systems, Inc., 
supra.



JOHNSON v. RAILWAY EXPRESS AGENCY 7

III
Petitioner, and the United States as amicus curiae, 

concede, as they must, the independence of the avenues 
of relief respectively available under Title VII and the 
older § 1981. See Jones v. Alfred H. Mayer Co., 392 
U. S. 409, 416-417 n. 20 (1968). Further, it has been 
noted that the filing of a Title VII charge and resort to 
Title VIPs administrative machinery are not prerequi­
sites for the institution of a § 1981 action. Long v. Ford 
Motor Co., 496 F. 2d 500, 503-504 (CA6 1974); Caldwell 
v. National Brewing Co., 443 F. 2d 1044, 1046 (CA5 
1971), cert, denied, 405 U. S. 916 (1972); Young v. In­
ternational Tel. .& Tel. Co., 438 F. 2d 757, 761-763 
(CA3 1971). Cf. Waters v. Wisconsin Steel Works, 427 
F. 2d 476, 487 (CA7), cert, denied, 400 U. S. 911 (1970).

We are satisfied, also, that Congress did not expect 
that a § 1981 court action usually would be resorted to 
only upon completion of Title VII procedures and the 
Commission’s efforts to obtain voluntary compliance. 
Conciliation and persuasion through the administrative 
process, to be sure, often constitute a desirable approach 
to settlement of disputes based on sensitive and emotional 
charges of invidious employment discrimination. We 
recognize, too, that the filing of a lawsuit might tend to 
deter efforts at conciliation, that lack of success in the 
legal action could weaken the Commission’s efforts to 
induce voluntary compliance, and that a suit is privately 
oriented and narrow, rather than broad, in application, as 
successful conciliation tends to be. But these are the 
natural effects of the choice Congress has made available 
to the claimant by its conferring upon him independent 
administrative and judicial remedies. The choice is a 
valuable one. Under some circumstances, the admin­
istrative route may be highly preferred over the litiga­
tory; under others, the reverse may be true. We are



JOHNSON v. RAILWAY EXPRESS AGENCY

disinclined, in the face of congressional emphasis upon 
the existence and independence of the two remedies, to 
infer any positive preference for one over the other, 
without a more definite expression in the legislation Con­
gress has enacted, as, for example, a proscription of a 
§ 1981 action while an EEOC claim is pending.

We generally conclude, therefore, that the remedies 
available under Title VII and under § 1981, although 
related, and although directed to most of the same ends, 
are separate, distinct, and independent. With this base 
established, we turn to the limitation issue.

IV
A. Since there is no specifically stated or otherwise 

relevant federal statute of limitations for a cause of 
action under § 1981, the controlling period would ordi­
narily be the most appropriate one provided by state 
law. See O’Sullivan v. Felix, 233 U. S. 318 (1914) 
(Civil Rights Act of 1871); Auto Workers v. Hoosier 
Corp., 383 U. S. 696, 701-704 (1966) (Labor Manage­
ment Relations A ct); Cope v. Anderson, 331 U. S. 461 
(1947) (National Bank Act); Chattanooga Foundry v. 
Atlanta, 203 U. S. 390 (1906) (Sherman Act); Campbell 
v. Haverhill, 155 U. S. 610 (1895) (Patent Act). For 
purposes of this case, the one-year limitation period in 
Tenn. Code § 28-304 clearly and specifically has appli­
cation.7 See Warren v. Norman Realty Co., ----F. 2d

7 In the petition for certiorari it was argued that § 28-304 was 
inapplicable to petitioner’s claim because that statute is limited to 
claims for damages, whereas petitioner sought injunctive relief as 
well as backpay. Our limited grant of certiorari foreclosed our con­
sidering whether some other Tennessee statute, such as Tenn. Code 
§28-309 (six years for an action on a contract) or §28-310 (10 
years on an action not otherwise provided for), might be the appro­
priate one. We also have no occasion to consider whether Tennes­
see’s express application of the one-year limitation period to federal



---- (CA8 1975). The cause of action asserted by peti­
tioner accrued, if at all, not later than June 20, 1967, the 
date of his discharge. Therefore, in the absence of some 
circumstance that suspended the running of the limita­
tion period, petitioner’s cause of action under § 1981 was 
time-barred after June 20, 1968, some two and one-half 
years before petitioner filed his complaint.

B. Respondents argue that the only circumstances that 
would suspend or toll the running of the limitation 
period under § 28-304 are those expressly provided under 
state law. See Tenn. Code §§ 28-106 to 28-115 and 28- 
301. Petitioner concedes, at least implicitly, that no 
tolling circumstance described in the State’s statutes was 
present to toll the period for his § 1981 claim. He 
argues, however, that state law should not be given so 
broad a reach. He claims that, although the duration of 
the limitation period is bottomed on state law, it is fed­
eral law that governs other limitations aspects, such as 
tolling, of a § 1981 cause of action. Without launching 
into an exegesis on the nice distinctions that have been 
drawn in applying state and federal law in this area,8 
we think it suffices to say that petitioner has overstated 
his case. Indeed, we may assume that he would argue 
vigorously in favor of applying state law if any of the 
Tennessee tolling provisions could be said to assist his 
cause.9

JOHNSON v. RAILWAY EXPRESS AGENCY 9

civil rights actions is an impermissible discrimination against the 
federal cause of action, see Republic Pictures Corp. v. Kappler, 151 
F. 2d 543, 546-547 (CA8 1945), aff’d, 327 U. S. 757 (1946), or 
whether the enactment of the limitation period after the cause of 
action accrued, Tenn. Pub. Acts 1969, c. 28, did not touch the 
pre-existing federal claim.

8 See generally Hill, State Procedural Law in Federal Nondiversity 
Litigation, 69 Harv. L. Rev. 66 (1955).

9 At oral argument petitioner advanced just such a proposition 
with respect to the applicability of Tennessee’s saving statute, Tenn.



10 JOHNSON v. RAILWAY EXPRESS AGENCY

Any period of limitation, including the one-year period 
specified by § 28-304, is understood fully only in the 
context of the various circumstances that suspend it from 
running against a particular cause of action. Although 
any statute of limitations is necessarily arbitrary, the 
length of the period allowed for instituting suit in­
evitably reflects a value judgment concerning the point 
at which the interests in favor of protecting valid claims* 
are outweighed by the interests in prohibiting the prose­
cution of stale ones. In virtually all statutes of limita­
tions the chronological length of the limitation period is 
interrelated with provisions regarding tolling, revival, 
and questions of application. In borrowing a state period 
of limitation for application to a federal cause of action, 
a federal court is relying on the State’s wisdom in setting 
a limit, and exceptions thereto, on the prosecution of a 
closely analogous claim.

There is nothing anomalous or novel about this. State 
law has been followed in a variety of cases that raised 
questions concerning the overtones and details of appli­
cation of the state limitation period to the federal cause 
of action. Auto Workers v. Hoosier Corp., 383 IT. S., at 
706 (characterization of the cause of action); Cope v. 
Anderson, 331 U. S., at 465-467 (place where cause of 
action arose); Barney v. Oelrichs, 138 U. S. 529 (1891) 
(absence from State as a tolling circumstance). Nor is 
there anything peculiar to a federal civil rights action 
that would justify special reluctance in applying state 
law. Indeed, the express terms of 42 U. S. C. § 1988 10 
suggest that the contrary is true.

Code § 28-106. Tr. of Oral Arg. 14. See also Petition for Cert. 
21 n. 27.

10 Title 42, U. S. C. § 1988 provides:
“The jurisdiction in civil and criminal matters conferred on the 

district courts by the provisions of this chapter and Title 18, for 
the protection of all persons in the United States in their civil



JOHNSON v. RAILWAY EXPRESS AGENCY 11

C. Although state law is our primary guide in this 
area, it is not, to be sure, our exclusive guide. As the 
Court noted in Auto Workers v. Hoosier Corp., 383 U. S., 
at 706-707, considerations of state law may be displaced 
where their application would be inconsistent with the 
federal policy underlying the cause of action under 
consideration.

Petitioner argues that a failure to toll the limitation 
period in this case will conflict seriously with the broad 
remedial and humane purposes of Title YU. Specifi­
cally, he urges that Title VII embodies a strong federal 
policy in support of conciliation and voluntary compli­
ance as a means of achieving the statutory mandate of 
equal employment opportunity. He suggests that failure 
to toll the statute on a § 1981 claim during the pendency 
of an administrative complaint in the EEOC would force 
a plaintiff into premature and expensive litigation that 
would destroy all chances for administrative conciliation 
and voluntary compliance.

We have noted this possibility above and, indeed, it 
is conceivable, and perhaps almost to be expected, that 
failure to toll will have the effect of pressing a civil 
rights complainant who values his § 1981 claim into 
court before the EEOC has completed its administrative

rights, and for their vindication, shall be exercised and enforced in 
conformity with the laws of the United States, so far as such laws 
are suitable to carry the same into effect; but in all cases where 
they are not adapted to the object, or are deficient in the provisions 
necessary to furnish suitable remedies and. punish offenses against 
law, the common law, as modified and changed by the constitution 
and statutes of the State wherein the court having jurisdiction of 
such civil or criminal cause is held, so far as the same is not in­
consistent with the Constitution and laws of the United States, shall 
be extended to and govern the said courts in the trial and disposi­
tion of the cause, and, if it is of a criminal nature, in the infliction 
of punishment on the party found guilty.”



12 JOHNSON v. RAILWAY EXPRESS AGENCY

proceeding.11 One answer to this, although perhaps not 
a highly satisfactory one, is that the plaintiff in his 
§ 1981 suit may ask the court to stay proceedings until 
the administrative efforts at conciliation and voluntary 
compliance have been completed. But the fundamental 
answer to petitioner’s argument lies in the fact—pre­
sumably a happy one for the civil rights claimant—that 
Congress clearly has retained § 1981 as a remedy against 
private employment discrimination separate from and 
independent of the more elaborate and time consuming 
procedures of Title VII. Petitioner freely concedes that 
he could have filed his § 1981 action at any time after 
his cause of action accrued; in fact, we understand him 
to claim an unfettered right so to do. Thus, in a very 
real sense, petitioner has slept on his § 1981 rights. The 
fact that his slumber may have been induced by faith 
in the adequacy of his Title VII remedy is of little rele­
vance inasmuch as the two remedies are truly independ­
ent. Moreover, since petitioner’s Title VII court action 
now also appears to be time-barred because of the pecu­
liar procedural history of this case, petitioner, in effect, 
would have us extend the § 1981 cause of action well 
beyond the life of even his Title VII cause of action. 
We find no policy reason that excuses petitioner’s failure 
to take the minimal steps necessary to preserve each 
claim independently.

y

Petitioner cites American Pipe & Construction Co. v. 
Utah, 414 U. S. 538 (1974), and Burnett v. New York 
Central R. Co., 380 U. S. 424 (1965), in support of his 11

11 We are not unmindful of the significant delays that have at­
tended administrative proceedings in the EEOC. See, e. g., Chrom- 
craft Corp. v. EEOC, 465 F. 2d 745 (CA5 1972); Equal Employ­
ment Opportunity Comm. v. E. I. duPont deNemours & Co., 373 
F. Supp. 1321, 1329 (Del. 1974).



JOHNSON v. RAILWAY EXPRESS AGENCY 13

position. Neither case is helpful. The respective periods 
of limitation in those cases were derived directly from 
federal statutes rather than by reference to state law. 
Moreover, in each case there was a substantial body of 
relevant federal procedural law to guide the decision to 
toll the limitation period, and significant underlying fed­
eral policy that would have conflicted with a decision 
not to suspend the running of the statute.12 In the 
present case there is no relevant body of federal proce­
dural law to guide our decision, and there is no conflict­
ing federal policy to protect.13 Finally, and perhaps 
most importantly, the tolling effect given to the timely 
prior filings in American Pipe and in Burnett depended 
heavily on the fact that those filings involved exactly

12 In Burnett, the Court considered the effect of a prior filing of 
an action under the Federal Employers’ Liability Act in state court 
on the applicable three-year FELA period of limitation. The action 
had been dismissed because under state law the venue was improper. 
In view of the express federal policy liberally allowing transfer of 
improperly venued cases, see 28 U. S. C. § 1406 (a), and the de­
sirability of uniformity in the enforcement of FELA claims, the 
Court concluded that the prior filing tolled the statute. In Ameri­
can Pipe we considered the effect that a timely filed civil antitrust 
purported class action should have on the applicable four-year 
federal period of limitation. The District Court found the suit an 
inappropriate one for class action status. In the light of the history 
of Fed. Rule Civ. Proc. 23 and the purposes of litigative efficiency 
served by class actions, we concluded that the prior filing had a 
tolling effect.

13 We note expressly how little is at stake here. We are not really 
concerned with the broad question whether these respondents can 
be compelled to conform their practices to the nationally mandated 
policy of equal employment opportunity. If the respondents, or 
any of them, presently are actually engaged in such conduct, there 
necessarily will be claimants who are in a position now either to 
file a charge under Title VII or to sue under § 1981. The question 
in this case is only whether this particular petitioner has waited so 
long that he has forfeited his right to assert his § 1981 claim in 
federal court.



14 JOHNSON v. RAILWAY EXPRESS AGENCY

the same cause of action subsequently asserted. This 
factor was more than a mere abstract or theoretical con­
sideration because the prior filing in each case necessarily 
operated to avoid the evil against which the statute of 
limitations was designed to protect.14

The judgment of the Court of Appeals is affirmed.

I t  is so ordered.

14 Petitioner argues that the timely filing of a charge with the 
EEOC has the effect of placing the charged employer on notice that 
a claim of discrimination is being asserted. Thus, petitioner argues, 
the employer has the opportunity to protect itself against the loss of 
evidence, the disappearance and fading memories of witnesses, and 
the unfair surprise that could result from a sudden revival of a claim 
that long has been allowed to slumber. See Telegraphers v. Ry. 
Express Agency, 321 U. S. 342, 348-349 (1944).

Even if we were to ignore the substantial span of time that could 
result from tacking the § 1981 limitation period to the frequently 
protracted period of EEOC consideration,. we are not a t all certain 
that a Title VII charge affords the charged party the protection 
that petitioner suggests. See, e. g., Tipler v. E. I. duPont deNe- 
mours & Co., 443 F. 2d 125, 131 (CA6 1971). Only where there 
is complete identity of the causes of action will the protections sug­
gested by petitioner necessarily exist and will the courts have an 
opportunity to assess the influence of the policy of repose inherent 
in a limitation period. See generally Developments in the Law-— 
Statutes of Limitation, 63 Harv. L. Rev. 1177, 1185-1186 (1950).



SUPREME COURT OF THE UNITED STATES

No. 73-1543

Willie Johnson, Jr., 
Petitioner, 

v.
Railway Express Agency, 

Inc., et al.

On Writ of Certiorari to the 
United States Court of Ap­
peals for the Sixth Circuit.

[May 19, 1975]

M r. J ustice M arshall, with whom M r. J ustice 
D ouglas and M r . J ustice B ren n a n  join, concurring in 
part and dissenting in part.

In recognizing that Congress intended to supply ag­
grieved employees with independent but related avenues 
of relief under Title VII of the Civil Rights Act of 1964 
and § 1981 of the Civil Rights Act of 1866, the Court 
emphasizes the importance of a full arsenal of weapons 
to combat unlawful employment discrimination in the 
private as well as the public sector. The majority stands 
on firm ground in recognizing that both remedies are 
available to victims of discriminatory practices. Accord­
ingly, I concur in Parts I - III  of the Court’s opinion.

But, the Court stumbles in its analysis of the relation 
between the two statutes on the tolling question. The 
majority concludes that the filing of a Title VII charge 
with the Equal Employment Opportunity Commission 
(EEOC) does not toll the applicable statute of limita­
tions. It relies exclusively on state law for the period 
and effect of the limitation and discounts the importance 
of the federal policies of conciliation and avoidance of 
unnecessary litigation in this area. The majority recog­
nizes these policies but concludes that tolling the statute 
of limitations for a § 1981 suit during the pendency of 
Title VII proceedings is not an appropriate means of



furthering them. I disagree. The congressional pur­
pose of discouraging premature judicial intervention and 
the absence of any real risk of reviving stale claims sug­
gest the propriety of tolling here. On balance, I view 
the failure to apply the tolling principle as undermining 
the foundation of Title VII and frustrating the congres­
sional policy of providing alternative remedies. I must, 
therefore, dissent from Parts IV and V of the opinion.

The Court sets out the circumstances that suspend 
a statute of limitations without close examination of the 
statute’s equitable underpinnings. According to the ma­
jority, the federal court is deprived of authority to toll 
the state statute because it borrows both “the State’s 
wisdom in setting a limit, [as well as] exceptions thereto,” 
ante, at 10, and offers no special reason for reluctance to 
apply the “overtones” of the period to a federal civil rights 
action. As a general practice, where Congress has created 
a federal right without prescribing a period for enforce­
ment, the federal courts uniformly borrow the most anal­
ogous state statute of limitations. The applicable period 
of limitations is derived from that which the State would 
apply if the action had been brought in a state court. 
See, e. g., United Automobile Workers v. Hoosier Cardi­
nal Corp., 383 U. S. 696 (1966); Holmberg v. Armbrecht, 
327 U. S. 392 (1946). O’Sullivan v. Felix, 233 U. S. 318 
(1914). See also American Pipe Construction Co. v. Utah, 
414 U. S. 538, 556 n. 27 (1974). For the purposes of this 
case the § 1981 action is governed by the District Court’s 
application of the one-year Tennessee provision for 
“actions . . . brought under the federal civil rights stat­
utes.” Tenn. Code Ann. § 28-304. See ante, at n. 7.

Congress’ failure to include a built-in limitations period 
in § 1981 does not automatically warrant “an imprimatur 
on state law” and sanction the borrowing of both the 
effect as well as the duration from state law. United

2 JOHNSON v. RAILWAY EXPRESS AGENCY



JOHNSON v. RAILWAY EXPRESS AGENCY 3

Auto Workers v. Hoosier Cardinal Corp., 383 U. S., at 
709 (W h it e , J., dissenting); Holmberg v. Armbrecht, 
327 U. S., at 394-395; Board of County Comm’rs v. 
United States, 308 U. S. 343 (1939). It is well settled 
that when federal courts sit to enforce federal rights, 
they have an obligation to apply federal equity principles:

“When Congress leaves to the federal courts the 
formulation of remedial details, it can hardly expect 
them to break with historic principles of equity 
in the enforcement of federally-created equitable 
rights.” Holmberg v. Armbrecht, 327 U. S., at 395.

See also Moviecolor Ltd. v. Eastman Kodak Co., 288 
F. 2d 80 (CA2), cert, denied, 368 U. S. 821 (1961).

The effect to be given the borrowed statute is thus 
a matter of judicial implication. Simply stated, we 
must determine whether the national policy considerations 
favoring the continued availability of the § 1981 cause of 
action outweigh the interests protected by the State’s stat­
ute of limitations. See United Auto Workers v. Hoosier 
Cardinal Corp., 383 U. S., at 708; Holmberg v. Armbrecht, 
327 U. S., at 395.

I
Title VII and now § 1981 both express the federal 

policy against discriminatory employment practices. Em­
porium Capwell Co. v. WACO, 420 U. S .----, •—  (1975);
Alexander v. Gardner-Denver Co., 415 U. S. 36, 44 
(1974); McDonnell Douglas Corp. v. Green, 411 U. S. 
792, 800 (1973); Griggs v. Duke Power Co., 401 U. S. 
424, 429-430 (1971). As we have recently observed, 
“legislative enactments in this area have long evinced a 
general intent to accord parallel or overlapping remedies 
against discrimination.” Alexander v. Gardner-Denver 
Co., 415 U. S., at 47. It is this general legislative intent 
that must guide us in determining whether congressional



4 JOHNSON v. RAILWAY EXPRESS AGENCY

purpose with respect to a particular statute is effectuated 
by tolling the statute of limitations.

A full exposition of the statutory origins of § 1981 
with respect to prohibition against private acts of dis­
crimination is set out in Jones v. Alfred H. Mayer Co., 
392 U. S. 409 (1968). In construing § 1982, a sister 
provision to § 1981, we concluded that Congress intended 
to prevent private discriminatory deprivations of all the 
rights enumerated in Section I of the 1866 Act, including 
the right to contract. 392 U. S., at 426. The Court’s 
recognition of a proscription in § 1981 against private 
acts of employment discrimination, ante, at 6, reaffirms 
that the early civil rights acts reflect congressional intent 
to “speak to all deprivations . . . whatever their source.” 
Griffin v. Breckenridge, 403 U. S. 88 (1971); Sullivan v. 
Little Hunting Park, Inc., 396 U. S. 229 (1969).

The legislative history of Title VII and its 1972 
amendments demonstrates that Congress intended to pro­
vide a coordinated but comprehensive set of remedies 
against employment discrimination. The short statute of 
limitations and the procedural prerequisites to Title VII 
actions emphasized the need to preserve the remedy of 
a suit under the 1866 legislation, which did not suffer 
from the same procedural restrictions as the latter enact­
ment. See H. R. Rep. No. 238, 92d Cong., 1st Sess., 
19 (1971); S. Rep. No. 415, 92d Cong., 1st Sess., 24 
(1971). See also 118 Cong. Rec. 3370. Congressional 
sentiment was that “by strengthening the administrative 
remedy [it] should not also eliminate preexisting rights 
which the Constitution and the Congress had accorded to 
aggrieved employees.” Id., at 3371. While encourage­
ment of private settlement to avoid unnecessary litiga­
tion under Title VII and the preservation of an inde­
pendent § 1981 action may appear somewhat at odds, 
the two themes are reconciled in the context of their joint



remedial purpose: devising a flexible network of remedies 
to guarantee equal employment opportunities. See, e. g., 
Guerra v. Manchester Terminal, 498 F. 2d 641, 650 (CA5 
1974); Boudreaux v. Baton Rouge Marine Corp., 437 
F. 2d 1011, 1017 (CA5 1971); Macklin v. Spector Freight
Systems, In c .,----  U. S. App. D. C. — ----  478 F. 2d
979, 994-995 (1973). See also Culpepper v. Reynolds 
Metal Co., 421 F. 2d 888 (CA5 1970).

In Alexander v. Gardner-Denver, supra, we examined 
the relationship between compulsory arbitration and liti­
gation under Title VII, a relationship analogous to that 
between the EEOC factfinding and conciliation process 
and litigation under § 1981, and accommodated both ave­
nues of redress. The reasoning leading to that result is 
equally compelling here. Forced compliance with a short 
statute of limitations during the pendency of a charge be­
fore the EEOC would discourage and/or frustrate recourse 
to the congressionally favored policy of conciliation, 
Alexander v. Gardner-Denver, 415 U. S., at 44, and “the 
possibility of voluntary compliance or settlement of Title 
VII claims would thus be reduced, and the result could 
well be more litigation, not less. Id., at 59. Cf. Ameri­
can Pipe Ac Const. Co. v. Utah, 414 U. S. 538, 555-556 
(1974).

Congressional effort, with the 1972 amendments, to 
strengthen the administrative remedy by increasing 
EEOC’s ability to conciliate complaints is frustrated by 
the majority’s requirement that an employee file the 
§ 1981 action prior to the conclusion of the Title VII 
conciliation efforts in order to avoid the bar of the 
statute of limitations.1 Legislative pains to avoid un­
necessary and costly litigation by making the informal,

JOHNSON v. RAILWAY EXPRESS AGENCY 5

1 Loss of the § 1981 cause of action would deprive the aggrieved 
employee of the opportunity to recover punitive damages and more 
ample backpay.



6 JOHNSON v. RAILWAY EXPRESS AGENCY

investigatory and conciliatory offices of EEOC readily 
available to victims of unlawful discrimination cannot 
be squared with the formal mechanistic requirement of 
early filing for the technical purpose of tolling a limita­
tions statute. In sum the federal policies weigh strongly 
in favor of tolling.

Examination of the purposes served by the statute of 
limitations indicates that they would not be frustrated 
by adoption of the tolling rule. Statutes of limitations 
are designed to insure fairness to defendants by prevent­
ing the revival of stale claims in which the defense is 
hampered by lost evidence, faded memories and dis­
appearing witnesses, and to avoid unfair surprise. None 
of these factors exist here.

Respondents were informed of the petitioner’s greiv- 
ances through the complaint filed with the Commission 
and conciliation negotiations. The charge filed with the 
EEOC and the § 1981 claim arise out of the same factual 
circumstances. The petitioner in this case diligently 
pursued the informal procedures before the Commission 
and adhered to the congressional preference for concilia­
tion prior to litigation. Now, when Johnson asserts his 
right to proceed with litigation under § 1981 after his 
good faith, albeit unnecessary, compliance with Title VII 
procedures, the majority interposes the bar of the Ten­
nessee statute of limitations which clearly was not de­
signed to include such cases.2

2 Under the Court’s no-tolling principle petitioner’s discharge on 
June 20, 1967, activated the statute which subsequently ran on 
June 20, 1968—two years prior to his receipt of the right to sue 
letter! The majority suggests that even if the statute were tolled 
during the consideration of the EEOC charge and the initial court 
proceedings, petitioner’s Title VII action may be time-barred be­
cause of the unusual procedural history of the case, requiring the 
Court to extend his § 1981 claim beyond that arising out of Title



JOHNSON v. RAILWAY EXPRESS AGENCY

In my judgment, following the antitolling position of 
the Court to its logical conclusion produces an inequi­
table result. Aggrieved employees will be forced into 
simultaneously prosecuting premature § 1981 actions in 
the federal courts. In essence, the litigant who first ex­
plores conciliation prior to resort to litigation must file a 
duplicative claim in the District Court on which the 
court will either take no action until the Title VII pro­
ceedings are concluded or proceed in frustration of the 
EEOC attempts to conciliate. No federal policy con­
siderations warrant this waste of judicial time and dero­
gation of the conciliation process.

Adoption of the tolling principle, however, protects 
the federal interest in both preserving multiple remedies 
for employment discrimination and in the proper func­
tion of the limitations statute. As a normal conse­
quence tolling works to suspend the operation of a 
statute of limitations during the pendency of an event 
or condition. See American Pipe <& Construction Co. 
v. Utah, 414 U. S., at 560-561; Burnett v. N. Y. Cen­
tral R. Co., 380 U. S. 424, 427 (1965). In American 
Pipe we held that the initiation of a timely class action 
tolled the running of the limitation period as to indi­
vidual members of the class, enabling them to institute 
separate actions after the District Court found class action 
an inappropriate mechanism for the litigation. In similar

VII. But our limited grant of certiorari forecloses consideration of 
the timeliness of the Title VII claim.

In any event this case reflects no departure from the normal rule of 
tolling. Consistent with the common understanding that tolling en­
tails a suspension rather than an extension of a period of limitations, 
petitioner is allowed whatever time remains under the applicable 
statute, as well as the benefit of any state savings statute. Under 
Tenn. Code Ann. § 28-106 an action dismissed without prejudice may 
be reinstituted within a year of dismissal. The filing here falls well 
within that time frame.



8 JOHNSON v. RAILWAY EXPRESS AGENCY

manner the Burnett court viewed the initiation of a 
timely Federal Employers’ Liability Act suit in state 
court as tolling the statute of limitations for the later 
filing of a federal action following dismissal of the state 
proceeding for improper venue. The Court’s analysis in 
both cases rested on the conclusion that each plaintiff 
had by his prior action given the defendant timely notice 
in a manner that “fulfilled policies of repose and cer­
tainty inherent in the limitations provisions and tolled 
the running of the period.” American Pipe & Construc­
tion Co. v. Utah, supra, 414 U. S., at 558.

Although the length of the limitation in these cases 
was fixed by federal statute, the tolling rationale is 
equally adaptable to protect subsequent litigation when 
the duration period is established by state statute. The 
federal policy in favor of continuing availability of mul­
tiple remedies for persons subject to employment dis­
crimination is inconsistent with the majority’s decision 
not to suspend the operation of the statute. As long as 
the claim arising under § 1981 is essentially limited 
to the Title VII claim, staleness' and unfair surprise dis­
appear as justification for applying the statute.3 Addi­
tionally, the difference in statutory origin for the right 
asserted under the EEOC charge and the susequent 
§ 1981 suit is of no consequence since the claims are 
essentially equivalent in substance. Cf. Alexander v. 
Gardner-Denver, supra. Since the EEOC charge gives 
notice that petitioner also has a grievance under § 1981, 
that filing, like the initial litigation in Burnett and 
American Pipe, satisfied the equitable policies under­

3 Where there are differences between the § 1981 claim and the 
Title VII complaint, the district courts could easily limit the tolling 
to those portions of the § 1981 claim that overlapped with the Title 
VII allegations. Cf. EEOC v. Louisville & Nashville R. Co., 505 
F. 2d 610, 617 (CA5 1974); Sanchez v. Standard Brands, 431 F 
2d 455, 466 (CA5 1970).



lying the limitation provision. American Pipe <ft Con­
struction Co. v. Utah, 414 U. S., at 558.

Neither the legislative history of these acts nor the 
avowed purposes of statutes of limitations foreclose good 
faith resort to the administrative procedures of EEOC. 
Adoption of the tolling theory avoids the draconian 
choice of losing the benefits of conciliation or giving up 
the right to sue, yet preserves the independent nature 
of the § 1981 action. Accordingly, I would reverse the 
court below on this point.

JOHNSON v. RAILWAY EXPRESS AGENCY 9