Thompson v. Raiford Motion for Leave to File and Brief Amicus Curiae in Opposition to Defendant's Alternative Motions to Dismiss and for Summary Judgement

    I n- t h k

B n p x m t  (Hmxvt n t
O ctober  T e r m , 1976 

No. 76-333

U n it e d  A ir  L in e s , I n c .,

V.

C aro lyn  J .  E v a n s .

Petitioner,

ON -V̂ RIT OF CERTIORARI TO THE UNITED STATES 
COURT OP APPEALS FOR THE SE-VENTH CIRCUIT

MOTION FOR LEAVE TO FILE AND BRIEF AMICUS 
CURIAE OF THE NAACP LEGAL DEFENSE 

AND EDUCATIONAL FUND, INC.

J ack  G reenberg  
J a m es  M. N a b e it , I I I  
P atrick  0 .  P atterson  

Suite 2030 
10 Columbus Circle 
New York, New York 10019

B arry L. G o ldstein  
Suite 426
733 Fifteenth Street, N.W. 
Washington, D.C. 20005

Attorneys for Amicus Curiae



I n  t h e(Hour! at
OcTOBEB T e e m , 1976 

No. 76-333

U n it e d  A ie  L in e s , I n c .,
Petitioner,

C arolyn  J .  E v a n s .

ON WRIT OF CEETIOEABI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SEVENTH CIRCUIT

STATEMENT OF INTEREST AND 
MOTION FOR LEAVE TO 

FILE BRIEF AS AMICUS CURIAE

NA A CP Legal Defense and Educational Fund, Inc., 
hereby moves for leave to file the attached brief as amicus 
curiae.

The NAACP Legal Defense and Educational Fund, 
Inc., is a non-profit corporation incorporated under the 
laws of the State of New York. It was formed to assist 
black persons in securing their constitutional rights by the 
prosecution of lawsuits. Its charter declares that its pur­
poses include rendering legal services gratuitously to 
Negroes suffering injustice by reason of racial discrimi­
nation. For many years attorneys of the Legal Defense 
Fund have represented parties in employment discrimina­
tion litigation before this Court and the lower courts. The 
Legal Defense Fund believes that its experience in em­
ployment discrimination litigation may be of assistance to



the Court. Consent to the filing of this brief has been 
granted by counsel for respondent but refused by counsel 
for petitioner. The proposed brief is submitted in support 
of respondent though advancing reasons somewhat dif­
ferent than those relied on by the court below and by 
respondent.

W h e e b f o e e , the NAACP Legal Defense and Educa­
tional Fund, Inc., respectfully prays that this motion be 
granted, and that the attached brief he filed.

J ack  G bebkbekg  
J am es  M. N a beit , III 
P a teic k  0 .  P atteeso n  

Suite 2030 
10 Columbus Circle 
New York, New York 10019

B aeey  L. G o ld stein  

Suite 426
733 Fifteenth Street, N.W. 
Washington, D.C. 20005

Attorneys for Amicus Curiae



I n' t h e

^itprpmr Olourt nf tli? #tatrs
OcTOBEE T e e m , 1976 

No. 76-333

U n it e d  A ir  L in e s , I n c .,
Petitioner,

C aeo lyn  J .  E v a n s .

ON 'WRIT OF CBETIOEARI TO THE UNITED STATES 
COURT OF APPEALS FOE THE SEVENTH CIRCUIT

BRIEF AMICUS CURIAE OF 
THE NAACP LEGAL DEFENSE 

AND EDUCATIONAL FUND, INC.

ARGUMENT
This case concerns the circumstances in which the cur­

rent application to an individual employee of a seniority 
policy which is facially neutral, but which perpetuates the 
effects of past discrimination against that employee, may 
he held to constitute a continuing violation of Title VII 
of the Civil Rights Act of 1964, as amended by the Equal 
Employment Opportunity Act of 1972, 42 U.S.C. § 2000e 
et seq. Although petitioner’s brief discusses at some length 
the statutorily prescribed time periods for filing a charge 
of discrimination with the Equal Employment Opportunity 
Commission,^ this requirement does not appear to be at 
issue here; because the respondent did not file such a

 ̂Prior to 1972, former section 706(d) of Title VII provided in 
pertinent part that a charge “shall he filed within ninety days 
after the alleged unlawful employment practice occurred.” Sec­
tion 706(e), as amended in 1972, extended this period to 180 days. 
42 U.S.C. §2000e-5(e).



charge within the applicable ninety-day time limit after 
the concededly unlawful  ̂ termination of her employment 
in 1968, she is forever barred from obtaining the full Title 
VII relief to which she would otherwise have been entitled 
solely as a remedy for that unlawful act. The respondent 
here does not seek such a remedy, but rather seeks relief 
from the perpetuation of the effects of the prior unlawful 
termination which she has suffered on a continuing basis 
since her re-employment by the petitioner in 1972. The 
issue presented by this case, then, is a narrow one: Where 
an employee who has been the victim of a discriminatory 
but previously unchallenged termination is subsequently 
rehired by the same employer, does the current and con­
tinuing denial of the rehired employee’s previously accrued 
seniority rights constitute an unlawful employment prac­
tice within the meaning of Title VII?

The language of the statute indicates that this ongoing 
deprivation of rights is a violation. Section 703(a) not 
only declares that it is in general unlawful “to discriminate 
against any individual with respect to his compensation, 
terms, conditions, or privileges of employment . . .,” ® but 
goes on to specify that it is unlawful for an employer 

to limit, segregate, or classify his employees or appli­
cants for employment in any way which would deprive 
or tend to deprive any individual of employment op­
portunities or otherwise adversely affect his status as 
an employee, because of such individual’s race, color, 
religion, sex, or national origin.^

An employer who, like the petitioner here, discharges 
employees because of their sex, and then later rehires them 
on the condition that they continue to be deprived of the

 ̂Evans’ employment was terminated in 1968 in accordance with 
United’s “no-marriage” rule for stewardesses, which was held to 
violate Title VII in Sprogis v. United Air Lines, Inc., 444 P.2d 
1194 (7th Cir.), cert, denied, 404 U.S. 991 (1971).

'42  U.S.C. § 2000e-2 (a)(1).
<42 U.S.C. §2000e-2(a)(2).



seniority rights which were unlawfully taken from them in 
the past, is clearly engaged in an ongoing practice which 
violates this explicit language. Any construction of Title 
Vll which might immunize such conduct from liability 
would be contrary to the statutory language and would 
frustrate the congressional intent “to prohibit all prac­
tices in whatever form which create inequality in employ­
ment opportunity due to discrimination on the basis of 
race, religion, sex, or national origin . . . ” Franks v. Bow­
man Transportation Go., 424 U.S. 747, 763 (1976).

The legislative history of the Equal Employment Oppor­
tunity Act of 1972 supports the plain meaning of the stat­
utory language and demonstrates beyond dispute that 
Congress intended to prohibit not only individual acts of 
discrimination, but also policies which perpetuate the ef­
fects of past acts of discrimination. As the Senate Com­
mittee on Labor and Public Welfare recognized in its 
report:

Employment discrimination as viewed today is a . . . 
complex and pervasive phenomenon. Experts familiar 
with the subject now generally describe the problem 
in terms of “systems” and “effects” rather than sim­
ply intentional wrongs, and the literature on the sub­
ject is replete with discussions of, for example, the 
mechanics of seniority and lines of progression, per­
petuation of the present effect of pre-act discrimina­
tory practices through various institutional devices, 
and testing and validation requirements.®

The congressional intent to prohibit continuing violations 
is clearly manifested in the language of section 706(g), 
which was amended in 1972 to provide that “[b]ack pay 
liability shall not accrue from a date more than two years 
prior to the filing of a charge with the Commission.” 42 
U.S.C. §2000e-5(g). This provision can have no meaning

® S.Eep. No. 415, 92d Cong, 1st Sess, 5 (1971), quoted in Franks 
V. Bowman Transportation Go., supra at 765 n.21.



except in the context of a continuing violation which has 
been occurring over a period far in excess of the 180-day 
time limit for the filing of a charge prescribed by section 
706(e). Within that context it is clear that, although hack 
pay liability is limited, the continuing violation of Title VII 
is itself an unlawful employment practice which is subject 
to challenge before the EEOC and in the courts.

The implicit meaning of the back pay limitation con­
tained in section 706(g) was made explicit in the congres­
sional section-by-section analysis of the 1972 Act.® With 
reference to the time limits for the filing of charges, the 
analysis stated as follows:

This subsection as amended [section 706(e)] pro­
vides that charges be filed within 180 days of the 
alleged unlawful employment practice. Court decisions 
under the present law [former section 706(d)] have 
shown an inclination to interpret this time limitation 
so as to give the aggrieved person the maximum bene­
fit of the law; it is not intended that such court deci­
sions should be in any way circumscribed by the time 
limitations in this subsection. Existing case law which 
has determined that certain types of violations are 
continuing in nature, thereby measuring the running 
of the required time period from the last occurrence 
of the discrimination and not from the first occurrence 
is continued, and other interpretations of the courts 
maximizing the coverage of the law are not affected.'^

Thus, it is clear from the statutory language and from 
the legislative history that Congress intended to outlaw

® The section-by-section analysis was prepared by the Senate co­
sponsors of the Act, Senators Williams and Javits. Senator Wil­
liams introduced it as “an analysis of H.E. 1746 as reported from 
the Conference. . . 118 Cong. Rec. 7166 (1972). The identical
section-by-seetion analysis was introduced into the House record by 
Representative Perkins, 118 Cong. Rec. 7563 (1972). The Con­
ference Committee bill was accepted bv both chambers. Id. at 
7170, 7573.

’ 118 Cong. Ree. 7167, 7565 (1972).



present, continuing practices wliieli perpetuate the effects 
of past discrimination, and that Congress intended to 
grant aggrieved persons the right to file charges with 
the EEOC—and subsequently to obtain relief from the 
courts—at any time during the continuing occurrence of 
such practices. Even in cases which have held that such a 
continuing violation is not established merely by the con­
tinuing nonemployment of a terminated former employee,* 
the courts have acknowledged that Title VII provides “a 
remedy for past actions which operate to discriminate 
against the complainant at the present time,” and that this 
remedy may be available to present employees, including 
those on layoff status.* Olson v. Rembrandt Printing Go., 
511 F.2d 1228, 1234 (8th Cir. 1975) {en banc)-, Terry v. 
Bridgeport Brass Co., 519 F.2d 806, 808 (7th Cir. 1975). 
Compare Collins v. United Air Lines, Inc., 514 F.2d 594, 
596 (9th Cir. 1975), with Gibson v. Local 40, Stiper-

* In Electrical Workers Local 790 v. Bobbins & Myers, Inc., 45 
U.S.L.W. 4068 (IJ.S. Dec. 20, 1976), this Court rejected a claim 
that the statutory period for filing a charge alleging a discrim­
inatory termination could begin to run from the date of the con­
clusion of grievance-arbitration procedures, rather than from the 
date of the termination. That decision is not dispositive of the 
instant case. There both the parties and the courts below had 
assumed throughout the proceedings that the discharge was the 
significant occurrence, id. at 4069, whereas here the dispute has 
been focused from the beginning on the continuing denial of se­
niority. Moreovor, in Electrical Workers the Coiirt specifically 
noted that a different result might obtain if the terminated em­
ployee were reinstated, id., which is precisely the case here. Finally, 
in Electrical Workers the Court found no express legislative his­
tory indicating the intent of Congress with respect to the effect 
of grievance procedures on Title VIT time limits, but here there 
are explicit legislative materials demonstrating that Congress in­
tended to permit the filing of a charge at any time during the 
ongoing occurrence of a continuing violation.

* Even petitioner concedes that a continuing violation may exist 
where there is an “ongoing seniority or other policy that properly 
can be said to have had its genesis in the original discriminatory 
practice or that was or is so inexorably tied to the former discrim­
inatory practice as to represent merely a. present extension of it.” 
Brief for Petitioner, at 21. Amicus submits that this is just such 
a ease.



cargoes d  Checkers, 13 FEP Cases 997, 1004 (9th Cir. 
1976).̂ ® The issue here is whether and to what extent the 
continuing violation concept applies to a case such as 
this, where a four year hiatus in the employment relation­
ship has preceded the renewal of that relationship and the 
commencement of the continuing consequences of the past 
discrimination.

No prior decision of this Court directly controls the 
resolution of this question. The Court in Griggs v. Duke 
Power Co., 401 U.S. 424 (1971), found that under Title 
VII, practices which are “neutral on their face, and even 
neutral in terms of intent, cannot be maintained if they 
operate to ‘freeze’ the status quo of prior discriminatory 
employment practices.” Id. at 430. But the Court was not 
there confronted with any question as to the continuing 
nature of any unlawful practice or as to whether a charge 
had been timely filed in relation to the violation alleged. 
In Franks v. Bowman Transportation Co., 424 U.S. 747 
(1976), the Court held that constructive seniority is ordi­
narily required as part of the Title VII remedy for dis­
crimination in hiring, but the Court did not explicitly 
decide whether the continuing denial of seniority rights 
stemming from such past discrimination is itself an unlaw­
ful practice, nor did the Court have any occasion to con­
sider the point at which a charge must be filed during the 
continuing occurrence of such a practice.

Nevertheless, the principles underlying these decisions 
are, as the court below recognized, clearly relevant to the 
question presented here. In every circuit which has

Petitioner contends that there is a conflict between the Ninth 
Circuit’s decision in Collins and the Seventh Circuit’s decision in 
the instant case. The absence of any such conflict is conclusively 
demonstrated by the Ninth Circuit’s specific reliance on the deci­
sion of the court below in support of its conclusion in Gibson that 
a continuing seniority preference in union work referrals “per­
petrated the effects of past discriminatory practices and constituted 
a present violation of Title VII.” 13 PEP Cases at 1004 and n.20. 
See Kennan v. Pan American World Airways, Inc., 13 PE P  Cases 
1530, 1533 (N.D. Cal. 1976).



resolved the matter, the courts have found that facially 
neutral seniority practices which “freeze the status quo,” 
preventing the victims of past discrimination from attain­
ing their rightful place in the employment hierarchy, are 
themselves unlawful under Title VII.“ This Court’s deci­
sion in Franks clearly supports this conclusion. There the 
Court found that Title VII “ ‘requires that persons ag­
grieved by the consequences and effects of the unlawful 
employment practice be, so far as possible, restored to a 
position where they would have been were it not for the 
unlawful discrimination’.” 424 U.S. at 764. The Court also 
recognized in Franks that, due to the ongoing nature and 
effect of seniority practices, the reform of those practices 
“cuts to the very heart of Title VII’s primary objective of 
eradicating present and future discrimination . . . .” Id. at 
768 n.28.

Thus, the Griggs and Franks decisions clearly indicate 
that a continuing seniority policy which perpetuates the 
effects of past discrimination against present employees 
is itself a violation of Title VII. Amicus submits that 
such a policy is unlawful not only as to persons continu­
ously employed since the date of the first discriminatory 
act against them, but also as to persons who have been 
discriminatorily terminated and later rehired without their 
previously accrued seniority. A person in this latter group, 
in contrast to one who is unlawfully discharged and who 
thereafter has no further contact with the former em-

See Acha v. Beame, 531 F.2d 648 (2d Cir. 1976); United 
States V. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1970) ; 
Bohinson v. Lorillard Gorp., 444 F.2d 791 (4tli Cir.), cert, dis­
missed, 404 U.S. 1006 (1971) ; Swint v. Pullman-Standard, 539 
F.2d 77 (5th Cir. 1976) ; United States v. Papermakers Local 189, 
416 F.2d 980 (5th Cir. 1969), cert, denied, 397 U.S. 919 (1970); 
EEOC V. Detroit Edison Go., 515 F.2d 301 (6th Cir.), cert, filed, 
44 U.S.L.W. 3214 (U.S. Oct. 7, 1975) ; Rogers v. International 
Paper Go., 510 F.2d 1340 (8th Cir.), as modified, 526 F.2d 722 
(1975) ; United States v .  Ironworkers Local 86, 443 F.2d 544 (9th 
Cir. 1970), cert, denied, 404 U.S. 984 (1971) ; Jones v. Lee Way 
Motor Freight, 431 F.2d 245 (10th Cir. 1970), cert, denied, 401 
U.S. 954 (1971).



8

ployer, is subjected to a renewal and an affirmative per­
petuation of the effects of the original discriminatory ter­
mination. It is this active transmission of the effects of 
the past unlawful act into the present and future which 
constitutes a continuing violation of Title VII. Kennan 
V. Pan American World Airways, Inc., 13 FEP Cases 1530, 
1531-34 (N.D. Cal. 1976).

The application of the continuing violation concept to 
cases such as this does not impose on employers an affirma­
tive duty to reinstate all discriminatorily terminated em­
ployees. A discharge followed by continuing non-employ­
ment, and even by a refusal to rehire which is not based 
on the discharge, does not constitute a continuing violation 
of Title VII; a charge of discrimination must be timely 
filed with relation to the date of discharge. Collins v. 
United Air Lines, Inc., supra. However, it is clear that a 
refusal to rehire which is based on the prior unlawful dis­
charge is an act which renews the past discrimination and 
which constitutes a present violation of Title VII. See 
Stroud V. Delta Airlines, Inc., 392 F.Supp. 1184, 1189, 1193 
(N.I). Ga. 1975).^  ̂ Similarly, the act of reinstatement 
without previously earned seniority, and the continuing 
denial of that seniority thereafter, constitute an active 
renewal and perpetuation of the past illegality. These 
affirmative acts and practices are continuing violations of 
Title VII; mere continuing nonemployment following an 
unlawful discharge is not.

The decision of the court below does not eliminate the 
period of limitations for Title VII actions, nor does it 
permit employees to resurrect time-barred claims. Where, 
as here, an employee has been terminated and has failed 
to file a charge of discrimination within the statutory

Thus, contrary to petitioner’s suggestion, an affirmance here 
would not encourage employers to adopt a policy of refusing to 
rehire discriminatorily terminated former employees. Such a policy 
would be unlawful whether or not the continuing violation concept 
applies to the facts of the instant case.



period following her termination, she has irretrievably 
lost her right to obtain reinstatement, back pay, and other 
relief to which she would have been entitled solely as a 
remedy for the unlawful termination. The subsequent 
renewal and perpetuation of the effects of that j)ast dis­
crimination did not remove the bar to her old claim; she 
has lost the back pay and other compensation and bene­
fits which she could have obtained had she filed a timely 
charge following her termination in 1968. But, since her 
reemployment in 1972, she has been subjected to an active 
and continuing denial of her Title VII rights, and this 
denial gives rise to a new claim for relief which clearly 
is not barred by time. Although she cannot now recover 
the full remedy which she could have obtained for her 
unlawful termination had she filed a timely charge in 1968, 
she is entitled to relief for the present, continuing viola­
tion which has been occurring since her reemployment 
without seniority in 1972.̂ *

The decision of the court below correctly recognizes 
that the continuing, affirmative perpetuation of the effects 
of past discrimination is itself a violation of Title VII. 
The statutory language, the legislative history, and the 
prior decisions of this Court under Title VII fully support 
this conclusion. Even as an employer modifies or elimi­
nates a discriminatory j)olicy which it has pursued in the 
past, it must also look to the future and review and adjust 
its seniority and other continuing practices to insure that 
the consequences of its past discrimination will not operate

Similarly, in the hypothetical examples posed in the Brief for 
Petitioner, at 19, the employees may be barred from recovering 
the full relief to which they would have been entitled had they 
filed charges within the statutory period following the original 
unlawful act, but they are not barred from obtaining a remedy for 
the present operation of practices which have perpetuated the 
effects of this original discrimination for thirty years. As noted 
above, the employer’s back pay liability would be limited to that 
accruing no more than two years prior to the filing of such a 
charge. 42 U.S.C. § 2000e-5(g). Thus, the hypothetical employees 
would have irretrievably lost twenty-eight years of back pay.



10

indefinitely to deprive its victims of their rightful place 
in the employment hierarchy. While employers should not 
be required, and are not required by the decision in this 
case, to answer to time-barred claims of past discrimina­
tion, the remedial purposes of Title VII mandate that em­
ployers be held accountable for their present practices 
which perpetuate inequality in employment opportunity 
due to discrimination.

CONCLUSION

For the reasons stated above, this Court is urged to 
affirm the decision of the court of appeals.

Eespectfully submitted.

J ack  G eeek bebg  
J am es  M. N a b b it , III 
P atrick  0 .  P atteesoet 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

B arry L. G o edsteik  
Suite 426
733 Fifteenth Street, N.W. 
Washington, D.C. 20005

Counsel for Amicus Curiae



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