Patterson v. McLean Credit Union Brief Amicus Curiae in Support of the Respondent on Reargument

    No. 87-107

In T he

Gkwrt of tip ItttJpii &tnt?B
October Term, 1988

Brenda Patterson,
v Petitioner,

McLean Credit Union,
Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE FOR THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE RESPONDENT 
ON REARGUMENT

R obert E. W illiam s 
Douglas S. McDowell * 

McGuiness & W illiams 
Suite 1200
1015 15th Street, NW. 
Washington, D.C. 20005 
(202) 789-8600 

Attorneys for Amicus Curiae 
Equal Employment 
Advisory Council

* Counsel of Record

W il s o n  - Epes  P r in t in g  Co . ,  In c . - 7 8 9 -0 0 9 6  - W a s h in g t o n , D .C . 200 01



TABLE OF CONTENTS
Page

TABLE OF CONTENTS..............    i

TABLE OF AUTHORITIES............................................  iii

INTEREST OF THE AMICUS CURIAE ....................... 1

STATEMENT OF THE CASE.......... .............................. 6

SUMMARY OF ARGUMENT.......... ..........    7

ARGUMENT .................   8

I. THIS COURT SHOULD RECONSIDER 
RUNYON v. McCRARY IN ORDER TO 
ADDRESS THE FUNDAMENTAL, UNRE­
SOLVED CONFLICT BETWEEN THE 
LAWSUIT-ORIENTED APPROACH OF SEC­
TION 1981 (WITH JURY TRIALS AND 
PUNITIVE AND COMPENSATORY DAM­
AGES), AND THE ADMINISTRATIVE CON­
CILIATION REQUIREMENTS OF TITLE VII 
—A CONFLICT THAT INTERFERES WITH 
CONGRESS’ INTENTION THAT TITLE VII 
BE THE PRIMARY MECHANISM TO RE­
SOLVE CLAIMS OF RACE-BASED EMPLOY­
MENT DISCRIMINATION .........   8
A. Section 1981 Was Not Generally Recognized

As An Available Remedy For Employment 
Discrimination When Congress Enacted And 
Amended Title V I I ................   8

B. The Remedial Schemes Established By Sec­
tion 1981 And Title VII Have Fundamental 
Inconsistencies .......    10
1. Section 1981 Relies On Immediate Resort 

To Litigation And Provides Remedies 
That Are Fundamentally Punitive and 
Undefined ........................................    10



2. Title VII Discourages Initial Resort To 
The Federal Courts And Establishes Vol­
untary Compliance And Conciliation As 
The Nation’s Primary Policy For Elimi­
nating Employment Discrimination.......  13

C. The Conflict Between The Two Remedial 
Schemes Was Not Meaningfully Addressed
In The Title VII Debates In 1964 And 1972.. 16
1. The 1964 Tower Amendment....................  17
2. The 1972 Hruska Amendment..... ............. 18

D. Early Lower Court Decisions Recognized
The Fundamental Problems Caused By The 
Coexistence Of Section 1981 And Title VII. .. 18

E. This Court’s Decisions Construing Other 
Reconstruction-Era Civil Rights Statutes 
Further Recognized That Court-Oriented 
Private Lawsuits Imperil The Purposes Of
Title V I I .................... .................................... 21
1. Brown v. GSA .......................................   21
2. The Novotny Decision................................  23

F. Title VII Is Being Interpreted And Enforced
In A Manner That Protects The Rights Of 
Charging Parties Consistent With Federal 
Antidiscrimination Policy..........................   24

CONCLUSION...............     28

ii

TABLE OF CONTENTS— Continued
Page



I ll

TABLE OF AUTHORITIES
Cases Page

Albemarle Paver Company v. Moody, 422 U.S. 405
(1975) .........................     28

Alexander v. Gardner-Denver Company, 415 U.S.
36 (1974)...............................   5,16

Brady v. Bristol-Meyers, Inc., 459 F.2d 621 (8th
Cir. 1972) .......................................................    19

Brown v. Gaston County Dyeing Machine Co., 457 
F.2d 1377 (4th Cir.), cert, denied, 409 U.S. 982
(1972) ...........        19

Brown v. General Services Administration, 425
U.S. 820 (1976) ...... ..............................................7, 21, 22

Caldwell v. National Brewing Co., 443 F.2d 1044 
(5th Cir. 1971), cert, denied, 405 U.S. 916
(1972) ................................................................   19,20

Chance v. Board of Examiners, 534 F.2d 993 (2d 
Cir. 1976), mod. on other grounds, 534 F.2d 
1007 (2d Cir. 1976), cert, denied, 431 U.S. 965
(1977) ................    24

Dean v. American Security Insurance Company,
559 F.2d 1036 (5th Cir. 1977), cert, denied, 434
U.S. 1066 (1978)...................................................... 22

EEOC v. Associated Dry Goods Corp., 449 U.S. 590
(1981).. ...................................................................  12,26

EEOC v. Commercial Office Products Company, 56
U.S.L.W. 4424 (U.S., May 17, 1988)................. 6, 25

EEOC v. Shell Oil Company, 466 U.S. 54 (1984).... 26
Ford Motor Co. v. EEOC, 458 U.S. 219 (1982)....... 16
General Building Contractors Ass’n, Inc. v. Penn­

sylvania, 458 U.S. 375 (1982) ..............................  5,25
General Telephone Company of the Northwest, Inc.

v. EEOC, 446 U.S. 318 (1980)..............................  7, 27
General Telephone Co. of the Southwest v. Falcon,

457 U.S. 147 (1982)................................................  27
Goodman v. LuJcens Steel Company, 107 S.Ct. 2617

(1987)......................................................................5,11,25
Great American Federal Savings & Loan Associa­

tion v. Novotny, 442 U.S. 366 (1979)..................5, 7, 23
International Union of Electrical Workers v. Rob­

bins & Myers, Inc., 429 U.S. 229 (1976)................ 5



IV

Johnson v. Railway Express Agency, 421 U.S. 454
(1975) .................................................................  passim

Johnson v. The Goodyear Tire & Rubber Company,
491 F.2d 1364 (5th Cir. 1974).... ........................9,10, 20

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).. 9,18 
Lingle v. Norge Division of Magic Chef, Inc., 108

S.Ct. 1877 (1988) .......... ........................................ 5,6
Long v. Ford Motor Co., 496 F.2d 500 (6th Cir.

1974) ........       19
Macklin v. Spector Freight Systems, Inc., 478 F.2d

979 (D.C. Cir. 1973) ... -.......................................... 19, 20
McDonald v. City of West Branch, Michigan, 466

U.S. 284 (1984) ......................   5
Mohasco Corp. v. Silver, 447 U.S. 807 (1980).......  15
Monell v. Dept, of Social Services of City of N.Y.,

436 U.S. 658 (1978)................................................. 4
Naton v. Bank of California, 649 F.2d 691 (9th

Cir. 1981) ..............    22
New York Gaslight Chib, Inc. v. Carey, 447 U.S.

54 (1980) ............... ...................................................  15,25
Occidental Life Ins. Co. of California v. EEOC, 432

U.S. 355 (1977)............     14,24
Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979).. 15
Patterson v. McLean Credit Union, 108 S.Ct. 1419

(1988)... .................................................................. 4,6
Richerson v. Jones, 551 F.2d 918 (3d Cir. 1977).— 15
Rogers v. Exxon Research & Engineering Co., 550 

F.2d 834 (3d Cir. 1977), cert, denied, 434 U.S.
1022 (1978).............................................................. 22

Runyon v. McCrary, 427 U.S. 160 (1976)............. 2, 5, 6, 8
Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th

Cir. 1970) ........................ ................................- ...... 18, 20
Sant v. Mack Trucks, Inc., 424 F. Supp. 621 (N.D.

Calif. 1976)....................   22
Slatin v. Stanford Research Institute, 590 F.2d

1292 (4th Cir. 1979)................    22
Smith v. North American Rockwell-Tulsa Div., 50 

F.R.D. 515 (N.D. Okla. 1970)

TABLE OF AUTHORITIES— Continued
Page

2 1



V

TABLE OF AUTHORITIES— Continued
Page

St. Francis College v. Al-Khazraji, 107 S.Ct. 2022
(1987) ....................................................................... 5

Taylor v. Safeway Stores, Inc., 833 F. Supp. 83 
(D.Colo. 1971), modified, 524 F.2d 263 (10th
Cir. 1975) ........... ..................................................... 21

United States v. East Texas Motor Freight System,
564 F.2d 179 (5th Cir. 1977)......... ....................... 25

United States v. Trucking Management, Inc., 662
F.2d 36 (D.C. Cir. 1981)..... ..................................  24

Washington v. Davis, 426 U.S. 229 (1976)..............  25
Waters v. Wisconsin Steel Works of International 

Harvester Co., 502 F.2d 1309 (7th Cir. 1974)
cert, denied, 425 U.S. 997 (1976)....... ................  24

Waters v. Wisconsin Steel Works of International 
Harvester Co., 427 F.2d 476 (7th Cir.), cert, 
denied sub nom. International Harvester Co. v.
Waters, 400 U.S. 911 (1970)........... ....................  19,20

Young v. International Telephone & Telegraph Co.,
438 F.2d 757 (3d Cir. 1971)........................... ...18,19, 20

Zipes v. Trans World Airlines, Inc., 45 U.S. 385
(1985) ..................................... ................................. 25

Statutes
Age Discrimination in Employment Act of 1967,

29 U.S.C. §§ 621 et seq............................................ 22
Civil Rights Act of 1866, Section 1981, 42 U.S.C.

§ 1981..................................................................... passim
Civil Rights Act of 1964,

Title VI, 42 U.S.C. § 2000d et seq............ ..........  4
Title VII, 42 U.S.C. § 2000eetseq.....................passim

Section 706 (b ), 42 U.S.C. § 2000e-5 .........  15, 27
Section 717, 42 U.S.C. § 2000eA6..............  17, 22

42 U.S.C. § 1985(3)...................................................... 5,23
42 U.S.C. § 1988..........    13
Equal Employment Opportunity Act of 1972, 42

U.S.C. § 2000e .......................................................  14,16
National Labor Relations Act, Section 301, 29 

U.S.C. § 185(a)........................................................ 5



VI

Rules and Regulations Page
Fed. R. Civ. P. 12.........................................................  7, 27
29 C.F.R. § 1601.16(b) (1) and (2) ..........................  27
29 C.F.R. § 1601.19 .......................................................  26
29 C.F.R. § 1601.22.,............. ...................................... 12
Executive Order 11246, 30 Fed. Reg. 12319 (1965), 

as amended by, 32 Ref. Reg. 14303 (1967) and
Fed. Reg. 46501 (1978) ....... .... ............................ 4

EEOC: Investigative Compliance Policy, 8 Fair
Empl. Prac. (BNA) 401:2625-2626 ....................  27

Policy Statement on Remedies and Relief for Indi­
vidual Victims of Discrimination, 8 Fair Empl.
Prac. (BNA) 401: 2615-2618 .................... ........ 26

Congressional History
110 Cong. Rec. 13650-652 (1964)...............................  17
118 Cong. Rec. 3961-62 (1972)...................................  18
Debates on Hruska Amendment to Title VII of the 

Civil Rights Act of 1964, reprinted in Legisla­
tive History of the Equal Employment Act of 
1972, 1382-1403 (1972).........................................  18

Miscellaneous
Brief for Respondents Brotherhood of Railway 

Clerks Tri-State Local and Brotherhood of Rail­
way Clerks Lily of the Valley Local, Johnson v. 
Railway Express Agency, 421 U.S. 454 (1975).... 11

Brief for the United States as Amicus Curiae, 
Johnson v. Railway Express Agency, 421 U.S.
454 (1975) ..............................................................  4

Brooks, Use of the Civil Rights Acts of 1866 and 
1871 to Redress Employment Discrimination, 62
Cornell L.Rev. 258 ................................................... 11

Note, Developments in the Law—Employment Dis­
crimination and Title VII of the Civil Rights Act
of 196U, 84 Harv. L.Rev. 1109 (1971) .................  24

Developments in the Law—Section 1981, 15 Harv.
C.R.-C.L.L. Rev. 29 (1980) .................................  19

TABLE OF AUTHORITIES— Continued



Exhaustion of Remedies under Title VII (Equal 
Employment Opportunity) of Civil Rights Act of 
196) ()2  USCS §§ 2000e, et seq.) as Prerequisite

vii

TABLE OF AUTHORITIES— Continued
Page

to Maintenance of Action Under )2 USCS § 1981 
for Employment Discrimination, 23 ALR Fed.
895 ............................................................................ 19

Reiss, Requiem for an “Independent Remedy” : The 
Civil Rights Acts of 1866 and 1871 as Remedies 
for Employment Discrimination, 50 S.Cal.L.Rev.
961 (1977) ................................................... ..........  11, 12

Richey, Manual on Employment Discrimination 
and Civil Rights Actions in the Federal Courts,
Kluwer 1987............................................................  8

Sape & Hart, Title VII Reconsidered: The Equal 
Employment Opportunity Act of 1972, 40 Geo.
Wash. L.Rev. 824 (1972)...     24

Shapiro, Section 1983 Claims to Redress Discrimi­
nation in Public Employment: Are They Pre­
empted by Title VII? 35 Am. U.L.Rev. 93 
(1985) .......................................................................  23



In  T h e

$uprm? (Exmrt nf tlp> §>tdtn\
October T e r m , 1988

No. 87-107

B ren da  P a tte r so n ,
Petitioner,v.

M cL ean  Credit  U n io n ,
Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE FOR THE  
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE RESPONDENT 
ON REARGUMENT

The Equal Employment Advisory Council, with the 
written consent of the parties, respectfully submits this 
brief as Amicus Curiae in support of the Respondent. 
The letters of consent have been filed with the Clerk of 
the Court.

INTEREST OF THE AMICUS CURIAE

The Equal Employment Advisory Council is a volun­
tary, nonprofit association organized to promote sound 
government policies pertaining to nondiscrimination in 
employment. Its membership comprises a broad segment 
of the employer community in the United States, includ­
ing both individual employers and trade associations. 
Its governing body is a board of directors composed of 
experts in equal employment opportunity and affirma­
tive action. Their combined experience gives the Coun­



2

cil a unique depth of understanding of the practical, as 
well as the legal, aspects of equal employment policies 
and requirements. All of the Council’s members are 
firmly committed to the principles of nondiscrimination 
and equal employment opportunity.

EEAC’s members will be directly affected by a deci­
sion in this case on the issue of whether the Court should 
reconsider its decision in Runyon v. McCrary, 427 U.S. 
160 (1976), which held that 42 U.S.C. § 1981 prohibits 
racial discrimination in the making and enforcement of 
private contracts. See cdso, Johnson v. Railway Express 
Agency, Inc., 421 U.S. 454 (1975) (Section 1981 affords 
a federal remedy against discrimination in private em­
ployment on the basis of race.) Section 1981 plaintiffs 
may have their claims heard before a jury and, if suc­
cessful, can receive extensive relief— including punitive 
damages and compensatory damages, such as for pain 
and suffering.

In resolving the issue of the reach of § 1981 and its 
impact on potential plaintiffs, the Court is likely to delve 
in some depth into the legislative history of § 1981 and 
the intent of the sponsors when the statute was enacted 
well over a century ago. That history will be covered 
extensively by the parties and other amici. EEAC’s brief 
does not take a position on the meaning of this history 
or on whether Runyon v. McCrary should be overruled. 
EEAC submits, rather, that however the Court decides 
the case on the merits, reconsideration of Runyon is war­
ranted because it will afford an opportunity for the Court 
to address and explicate, if not resolve, the practical ef­
fects of § 1981’s coexistence with other, fundamentally 
inconsistent statutory schemes for remedying private em­
ployment discrimination.

EEAC’s brief thus concentrates on the fact that 
§ 1981 exists alongside of— and often in conflict with—  
numerous other federal, state, and local employment dis­
crimination statutes, executive orders, wrongful discharge



3

causes of action and collective bargaining agreements, 
all of which may provide an avenue of relief for an in­
dividual for the same alleged racial discrimination.

More specifically, while this Court has noted that 
§ 1981 and Title VII of the 1964 Civil Rights Act, 42 
U.S.C. §§ 2000e, et seq. provide “ independent] . . . 
avenues of relief” (Johnson, 421 U.S. at 460), experi­
ence over the past decade has shown that those avenues 
not only are independent, but often are fundamentally 
conflicting and antithetical. Thus, § 1981 relies exclu­
sively on private individual court suits, spurred by un­
defined damages designed to punish the employer and 
provide damages for pain and suffering. Title VII es­
chews immediate resort to the courts, requires adminis­
trative investigation and conciliation, and imposes dam­
ages which are primarily of a “ make whole” nature.

The fundamental policy and enforcement problems 
caused by this legislative dichotomy never were addressed 
in a meaningful manner, either when Title VII was en­
acted in 1964, when it was amended in 1972, or in prior 
decisions of this Court. What this Court says in this 
case about the existing civil rights structure in terms of 
its effects on enforcement, conciliation, efficiencies, in­
consistencies and impact on the judiciary, will be ex­
tremely important not only for the enforcement of those 
statutes, but also in any future Congressional debates 
related to this Court’s decision.1

The briefs in Johnson v. Railway Express did not ad­
dress in any detail the negative effect on public anti- 
discrimination policy of conflicting side-by-side statutory 
schemes. Rather, the issue in that case was limited to 
“whether the timely filing of a [Title VII] charge of 
employment discrimination . . . tolls the running of the 
period of limitation applicable to an action based on the

1 See Brief of 66 Members of the United States Senate and 118 
Members of the United States House of Representatives as Amici 
Curiae in Support of Petitioner.



same facts, instituted under 42 U.S.C. § 1981.” 421 U.S. 
at 455.

Moreover, although a number of lower courts had 
ruled that § 1981 prohibits private employment discrim­
ination on the basis of race (see Johnson, 421 U.S. at 
460-61 n.6), the Respondents in Johnson “ [did] not chal­
lenge those decisions [t]here, and therefore the question 
of the scope of Section 1981 [was] not before the Court.” 
Brief for the United States as Amicus Curiae in John­
son v. Railway Express, at 12 n.6. Thus, the Court’s 
statements in Johnson that § 1981 applies to private em­
ployment discrimination were not addressing the precise 
issue upon which review had been granted and, conse­
quently, many of the arguments advanced in this brief 
were not briefed to the Court. In short, there has not 
been a “ full airing of all the relevant considerations” 
(Monell v. Dept, of Social Services of City of N.Y., 436 
U.S. 658, 709 n.6 (1978) (Powell, J., concurring)) that 
bear on the relationship between Title VII and § 1981.

In addition, in deciding this case, the Court should 
keep in mind that aside from Section 1981, numerous 
other avenues of relief are available for race-based em­
ployment discrimination. See Patterson v. McLean Credit 
Union, 108 S.Ct. 1419, 1422 (1988) (dissenting opinions 
of Justices Blackmun and Stevens). For example, an 
individual employed by a federal contractor with at least 
15 employees has numerous independent avenues of re­
lief wholly apart from § 1981, each of which may be 
pursued simultaneously. These include:

— Title VII;
-—Executive Order 11246;
— Title VI of the Civil Rights Act of 1964, 42 U.S.C. 

§ 2000d, et seq. (if the employer receives federal 
financial assistance);

— anti-discrimination statutes in virtually every 
State, and numerous local statutes and ordinances;

4



5

— state and local executive orders prohibiting dis­
crimination and requiring affirmative action;

— state court suits (where available) for wrongful 
discharge based upon contract, tort or other theo­
ries (often with jury trials and punitive and com­
pensatory damages) ; 12 and

— grievance proceedings, arbitration and federal 
suits under § 301 of the National Labor Relations 
Act for breach of collective bargaining obligations 
where a union contract exists.8

Thus, at least with respect to employment discrimina­
tion, even if Runyon v. McCrary is reversed, employers 
still will have substantial incentives to avoid employ­
ment discrimination.

EEAC is well-qualified to brief the Court on the im­
plications of its decision in this case on federal civil 
rights enforcement, having participated as amicus curiae 
in the initial briefing of this case, as well as in numer­
ous other cases involving § 1981 and Title VII issues.2 * 4

2 See Lingle v. Norge Division of Magic Chef, Inc., 108 S.Ct. 1877 
(1988), which increases the ability of plaintiffs to sue under various 
state wrongful discharge theories even if a collective bargaining 
agreement also applies to the same situation.

8 See Alexander v. Gardner-Denver Company, 415 U.S. 36 (1974) 
(right to sue under Title VII not encumbered by prior submission 
of claim to arbitration) ; International Union of Electrical Workers 
v. Robbins & Myers, Inc., 429 U.S. 229 (1976) (filing a grievance 
under a collective bargaining agreement does not toll Title VII’s 
charge filing requirements) ; and McDonald v. City of West Branch, 
Michigan, 466 U.S. 284 (1984) (no preclusive effect need be given to 
labor arbitration awards).

4 See, e.g., Goodman v. Lukens Steel Company, 107 S.Ct. 2617 
(1987) (Section 1981 statute of limitations) ; St. Francis College 
v. Al-Khazraji, 107 S.Ct. 2022 (1987) (Section 1981 and national 
origin discrimination) ; General Building Contractors Ass’n, Inc. v. 
Pennsylvania, 458 U.S. 375 (1982) (Section 1981 standard of 
proof) ; Great American Savings & Loan Assn. v. Novotny, 422 
U.S. 366 (1979) (42 U.S.C. § 1985(3) does not apply to a conspiracy 
to violate Title VII) ; IUE, Local 790 v. Robbins & Meyers, 429



6

STATEMENT OF THE CASE

This case arose out of a race-based discrimination suit 
filed by Brenda Patterson under 42 U.S.C. § 1981. She 
alleged that she had been a victim of race discrimination 
by her employer. In particular, she alleged that she was 
subjected to racially-motivated harassment and that she 
was denied a promotion because of her race. Her claim 
of promotion discrimination was submitted to a jury, 
which returned a verdict for the employer. The correct­
ness of the district court’s jury instruction on the pro­
motion issue was considered in the first hearing before 
this Court, and EEAC’s initial brief argued that the in­
struction was correct.

Also at issue was whether the Fourth Circuit was cor­
rect in ruling that a claim for racial harassment is not 
cognizable under § 1981. These issues were not addressed 
by EEAC nor resolved by the Court, which instead or­
dered reargument on the following question:

Whether or not the interpretation of 42 U.S.C. § 1981 
adopted by this Court in Runyon v. McCrary, 427 
U.S. 160 . . . should be reconsidered.

In dissenting from this order, Justice Blackmun stated 
that it is “probably true that most racial discrimination 
in the employment context will continue to be redress- 
able under other statutes. . . .” Patterson v. McLean 
Credit Union, 108 S.Ct. 1419, 1422 (1988). Similarly, 
Justice Stevens’ dissenting opinion pointed out that . . 
the present case involves a claim of discrimination in 
the workplace, an area of the law where there is sub­
stantial overlap between 42 U.S.C. § 1981 and Title VII 
. . .  42 U.S.C. § 2000e, et seq.” Id. It is the interrela­

U.S. 229 (1976); EEOC v. Commercial Office Products Company, 56 
U.S.L.W. 4424 (U.S., May 17, 1988) (analysis of Title VII’s re­
quirement of deferral to state agencies as an alternative to court 
suit) ; and Lingle v. Norge Division of Magic Chef, Inc., 107 S.Ct. 
1877 (1988) (effect of federal law on state wrongful discharge 
suits).



7

tionship between these two statutory schemes that is the 
primary focus of this amicus curiae brief.

SUMMARY OF ARGUMENT

In discussing the applicability of § 1981 to employment 
discrimination, this Court has stated that § 1981 and 
Title VII provide “ independ [ent] avenues of relief” 
(.Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 
460 (1975)). The Court, however, also has recognized 
that the filing of a § 1981 suit can deter Title VII con­
ciliation and that such a lawsuit is “privately oriented 
and narrow, rather than broad, in application, as suc­
cessful [Title VII] conciliation tends to be.”  Id., 421 
U.S. at 461.

Thus, this and other courts often have expressed con­
cerns that because of Title VII’s administrative require­
ments, § 1981 will, “by perverse operation of a type of 
Gresham’s law” drive the use of Title VII “ out of cur­
rency.” Brown v. General Services Administration, 425 
U.S. 820, 833 (1976). See also Great American Federal 
Savings & Loan Association v. Novotny, 442 U.S. 366, 
376 (1979) (“ Perhaps most importantly, the complaint 
could completely bypass the administrative process which 
plays such a crucial role in the scheme established by 
Congress in Title VII.” ). Because § 1981 was not widely 
used in the employment context until after the 1972 Title 
VII debates, Congress has never addressed meaningfully 
the fundamental inconsistencies between the two statutes.

Moreover, this Court’s Title VII decisions provide 
many benefits for charging parties. Liberal construction 
of time filing requirements, and the EEOC’s investiga­
tory and enforcement authority, have assured that the 
EEOC— unlike private litigants— can pursue enforcement 
actions that “are not limited to the claims presented by 
the charging parties”  and are unencumbered by the lim­
ited class representative requirements of Rule 23, Fed. 
R.Civ. Pro. General Telephone Company of the North­
west, Inc. v. EEOC, 446 U.S. 318, 331 (1980).



8

Private plaintiffs alleging employment discrimination 
have multiple avenues of relief besides § 1981, including 
Title VII, state and local laws and executive orders, 
wrongful discharge suits and collectively bargained 
dispute-resolution mechanisms. But as this brief shows, 
Title VII and § 1981 often work at cross purposes. As a 
result, the use of § 1981 to cover employment discrim­
ination may be impeding Congressional intent that Title 
VII be the primary means of dealing with employment 
discrimination on the federal level.

ARGUMENT

I. THIS COURT SHOULD RECONSIDER RUNYON v, 
McCRARY  IN ORDER TO ADDRESS THE FUNDA­
MENTAL, UNRESOLVED CONFLICT BETWEEN  
THE LAWSUIT-ORIENTED APPROACH OF SEC­
TION 1981 (WITH JURY TRIALS AND PUNITIVE  
AND COMPENSATORY DAMAGES), AND THE 
ADMINISTRATIVE CONCILIATION REQUIRE­
MENTS OF TITLE VII—A CONFLICT THAT IN­
TERFERES W ITH CONGRESS’ INTENTION THAT  
TITLE VII BE THE PRIMARY MECHANISM TO 
RESOLVE CLAIMS OF RACE-BASED EMPLOY­
MENT DISCRIMINATION

A. Section 1981 Was Not Generally Recognized As An 
Available Remedy For Employment Discrimination 
When Congress Enacted And Amended Title VII

Despite the extensive arguments over the legislative 
history of the 1866 Civil Rights Act set out in the briefs 
of Petitioner and supporting amici, there is no real ques­
tion that § 1981 “ lay essentially dormant”  for more than 
a century before it was used in any meaningful manner 
in the employment discrimination context.® Indeed, it was

8 Richey, Manual on Employment Discrimination and Civil Rights 
Actions in the Federal Courts, at D-l (1987). Unlike Title VII, 
Section 1981 does not mention employment discrimination and has 
no administrative enforcement mechanism. Rather, immediate re­
sort to the federal courts is required under § 1981, which provides:

[Continued]



9

not until the 1968 decision in Jones v. Alfred H. Mayer 
Co., 392 U.S. 409 (1968), that the Court held that § 1981 
provided a right to an individual to sue for racial dis­
crimination in private, as well as public, sale or rental 
of property. Until that decision, there had been no con­
clusive ruling by the Court that § 1981 was not limited 
to contract-related discrimination by public entities.

Moreover, it was not for another seven years, until 
1975, that the Court stated that § 1981 affords a federal 
remedy against discrimination in private employment on 
the basis of race. Johnson v. Railway Express Agency, 
Inc., 421 U.S. 454, 460 (1975). Thus, this Court’s ruling 
on this crucial issue was not handed down until after 
the Congressional Title VII debates in 1964 and 1972—  
the only two times when Congress has taken a compre­
hensive look at race-based employment discrimination.

Any meaningful discussion of the use of § 1981 to 
remedy employment discrimination must recognize that 
until the mid-1960’s, there was— as a practical matter— 
no useful federal remedy for employment discrimination. 
Indeed, although the Fifth Circuit preceded this Court in 
finding a § 1981 cause of action for employment claims, 
it also limited back pay under § 1981 to the effective date 
of Title VII. See Johnson v. The Goodyear Tire & Rub­
ber Company, 491 F.2d 1364, 1378 (5th Cir. 1974). The 
Fifth Circuit stated:

We think that a balancing of equities presented by 
the whole area of employment discrimination de­
mands that back pay claims under § 1981 be limited 
to July 2, 1965, the effective date of Title VII. It
was not until that date that the employers clearly 5

5 [Continued]
All persons within the jurisdiction of the United States shall 
have the same right in every State and Territory to make and 
enforce contracts, to sue, be parties, give evidence, and to the 
full and equal benefit of all laws and proceedings for the secu­
rity of persons and property as is enjoyed by white citizens, 
and shall be subject to like punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, and to no other.



became aware that they would be held accountable 
for employment discrimination. Our revitalization 
of § 1981 did not occur until 1970. In our opinion, 
it would be unjust to impose liability before the ef­
fective date of Title VII even though we are aware 
that the two provisions have been interpreted to be 
procedurally independent in our Circuit.

491 F.2d at 1378-79 (emphasis added). Thus, in the 
1970’s, there was no experience as to how effectively 
§ 1981 would work in carrying out a long-dormant Con­
gressional mandate to eliminate private employment dis­
crimination. This Court may consider on rehearing 
whether there was, in fact, any such mandate from the 
Congress that passed the Reconstruction-Era Civil Rights 
statutes in the mid-1860’s. But, regardless of how the 
Court ultimately rules, its reconsideration of that issue 
should not be undertaken in a historical vacuum. The 
Court is now in a position to assess the practical impli­
cations of § 1981’s coexistence with other, more recently 
enacted remedies for employment discrimination, and 
this case presents a rare vehicle in which to do so.

B. The Remedial Schemes Established By Section 1981 
And Title VII Have Fundamental Inconsistencies

1. Section 1981 Relies On Immediate Resort To 
Litigation And Provides Remedies That Are 
Fundamentally Punitive And Undefined

Section 1981 relies for its enforcement on direct resort 
to civil litigation. Its remedies are essentially punitive 
and undefined. It provides several important procedural 
inducements to plaintiffs that are not available to Title 
VII charging parties. These inducements include:

—punitive damages;
— compensatory damages (including damages for 

pain and suffering;
—jury trials;
— longer statutes of limitations;
— no need to wait for the EEOC to investigate the 

charge and issue a right-to-sue letter; and

10



11

—no limitation on back pay to two years prior to 
the filing of a charge.6

In practice, these procedures are often used to extract 
from defendants settlements that bear little relationship 
to the degree of damages suffered by the plaintiff.

As one commentator has pointed out, the “ fiscal con­
sequences” of proceeding under 1981 can be enormous. 
Brooks, Use of the Civil Rights Acts of 1866 and 1871 
to Redress Employment Discrimination, 62 Cornell L. 
Rev. 258, 285 (1977). “ Compensatory and punitive dam­
ages—both available under the Reconstruction Acts—  
can easily amount to millions of dollars.” Id., at 285. 
Thus, the possibility of recovering such damages “ encour­
ages plaintiffs to seek redress in the many cases where 
actual injury is too small to warrant a suit for com­
pensatory damages alone.” Id., at 287.

Indeed, because of the large potential damages awards, 
there is a great deal of truth to the now-standard irony 
shared by employment discrimination litigators that it 
is virtually malpractice for a plaintiff’s attorney to file 
a Title VII charge with the Equal Employment Oppor­
tunity Commission (EEOC) in a race-discrimination 
case, instead of filing a federal or state court suit under 
§1981 and some theory of wrongful discharge where 
available.7

Moreover, even when a Title VII charge is filed, a 
§ 1981 complaint also may be filed as the same time, or 
at some later time before the longer § 1981 limitations

8 See Brief for Petitioner on the merits, at pp. 58-61; Johnson 
v. Railway Express, 421 U.S. at 460 (jury; damages; back pay); 
and Goodman v. Lukens Steel Co., 107 S.Ct. 2617 (1987) (limitations 
period). See also, Reiss, Requiem for an “Independent Remedy” : 
The Civil Rights Acts of 1866 and 1871 as Remedies for Employ­
ment Discrimination, 50 S.Cal.L.Rev. 961, 965-970 (1977).

7 See Brooks, 62 Cornell L.Rev. at 260, which argued that “ it is 
prudent for an attorney to file suit under more than one statutory 
provision, so as to assure survival of the action beyond the pretrial 
stage and maximize the chances for success at trial.



12

period runs out. As was pointed out to the Court in 
Johnson v. Railway Express:

the fact is that Section 1981 is commonly thrown 
into complaints based on Title VII principally for 
the purpose of avoiding defects in the complaint 
arising out of failure to comply with one or more 
of the requirements of Title VII.8

The Title VII charge may be broader in scope than 
the § 1981 complaint, as, for example, when a charge 
alleging race and sex discrimination under Title VII is 
filed concurrently with a § 1981 race claim. This may 
lead to procedural complications if the cases are con­
solidated for trial. For example, the Court may deter­
mine that the race discrimination issues are appropriate 
for jury consideration but the sex discrimination claims 
are not.

Another common plaintiff’s tactic is to file a Title VII 
charge, thereby triggering an EEOC investigation which 
is conducted at agency expense and which costs nothing to 
the chargeing party or his attorney. Often this investiga­
tion is lengthy and complex and a great deal of informa­
tion is developed. The information in the EEOC’s investi­
gative files must be turned over to the charging party or 
his attorney once his Title VII suit is “ instituted.” See 29 
C.F.R. 1601.22 (1979) ; and EEOC v. Associated Dry 
Goods Corp., 449 U.S. 590 (1981).

The information developed by EEOC thus can be used 
as the basis for the plaintiff’s private lawsuit. Typically, 
the plaintiff’s complaint will be based on § 1981, as well 
as Title VII. Since the limitations period for filing a

8 Brief for Respondents Brotherhood of Railway Clerks Tri-State 
Local and Brotherhood of Railway Clerks Lily of the Valley Local,
p. 16, Johnson v. Railway Express Agency, 421 U.S. 454 (1975). See 
also Reiss, 50 S.Cal.Rev. at 1025:

The primary present use of the Civil Rights Acts of 1866 and 
1871, therefore, is simply as a safeguard against the procedural 
pitfalls of Title VII, in areas covered by that statute. No plain­
tiff should fail to allege claims under one or more of these 
statutes and Title VII, whenever applicable. (Emphasis in 
original)



§ 1981 suit often will not run out until after the EEOC 
investigation is complete, the case can proceed through 
the EEOC investigation and conciliation periods before 
the employer is even aware that a § 1981 suit is con­
templated.

A plaintiff thus can obtain the relevant information 
for a private suit without incurring substantial attor­
ney’s fees for this investigation that would not be award- 
able unless he prevailed at trial. See 42 U.S.C. § 1988, 
which provides attorney’s fees only to a “ prevailing 
party.” This tactic essentially subverts Title VII’s em­
phasis on conciliation and administrative resolution of 
charges.

As this discussion demonstrates, § 1981 provides sig­
nificant inducements to plaintiffs and their counsel, who, 
not surprisingly, regularly resort to § 1981 even when 
proceeding simultaneously under Title VII. But, as now 
shown, encouraging such dual proceedings tends to thwart 
the public interest and the goals established by Congress 
in enacting Title VII.

2. Title VII Discourages Initial Resort To The Fed­
eral Courts And Establishes Voluntary Compli­
ance And Conciliation As The Nation’s Primary 
Policy For Eliminating Employment Discrimi­
nation

Even though this Court has stated that Title VII and 
§ 1981 provide independent avenues of relief, it also has 
recognized the inherent conflict between these statutes. 
Thus, the Court stated in Johnson v. Railway Express, 
421 U.S. at 461:

We recognize, too, that the filing of a lawsuit [under 
§ 1981] might tend to deter efforts at conciliation, 
that lack of success in the legal action could weaken 
the Commission’s efforts to induce voluntary com­
pliance, and that a suit is privately oriented and 
narrow, rather than broad, in application, as suc­
cessful conciliation tends to be.



14

A review of Title VIPs administrative scheme demon­
strates the fundamental differences from § 1981.

The primary focus of Title VII is on administrative 
enforcement and voluntary compliance, not on federal 
court litigation. Thus:

In the Equal Employment Opportunity Act of 1972 
Congress established an integrated, multistep en­
forcement procedure culminating in the EEOC’s 
authority to bring a civil action in a federal court. 
That procedure begins when a charge is filed with 
the EEOC alleging that an employer has engaged in 
an unlawful employment practice. A charge must 
be filed within 180 days after the occurrence of the 
allegedly unlawful practice, and the EEOC is di­
rected to serve notice of the charge on the employer 
within 10 days of filing. The EEOC is then required 
to investigate the charge and determine whether 
there is reasonable cause to believe that it is true. 
This determination is to be made “ as promptly as 
possible and, so far as practicable, not later than one 
hundred and twenty days from the filing of the 
charge.” If the EEOC finds that there is reasonable 
cause it “ shall endeavor to eliminate any such alleged 
unlawful employment practice by informal methods 
of conference, conciliation, and persuasion.”  When 
“ the Commission [is] unable to secure . . .  a concilia­
tion agreement acceptable to the Commission, the 
Commission may bring a civil action against any 
respondent. . . .”

Occidental Life Ins. Co. of California v. EEOC, 432 U.S. 
355,359-60 (1977) (footnotes omitted).

Indeed, Title VII not only provides for prior review 
by the EEOC; it also contains the requirement that state 
agencies be given:

an opportunity to redress the evil at which the fed­
eral legislation was aimed, and to avoid federal in­
tervention unless its need was demonstrated. . . . 
Congress chose to prohibit the filing of any federal 
charge until after state proceedings had been com­
pleted, or until 60 days had passed, whichever came 
sooner.



15

Mohasco Corp. v. Silver, 447 U.S. 807, 821 (1980) (em­
phasis added). Accord, Oscar Mayer & Co. v. Evans, 441 
U.S. 750, 755 (1979) (deferral provisions give state 
agencies an opportunity “ to resolve problems of employ­
ment discrimination and thereby to make unnecessary, 
resort to federal relief by victims of discrimination” ).

Thus, Section 706(b) of Title VII was “ clearly in­
tended to increase the role of States and localities in re­
solving charges of employment discrimination.” 447 U.S. 
at 820.

Congress viewed proceedings before the EEOC and 
in federal court as supplements to available state 
remedies for employment discrimination. Initial re­
sort to state and local remedies is mandated, and 
recourse to the federal forums is appropriate only 
when the State does not provide prompt or complete 
relief.

New York Gaslight Club, Inc., v. Carey, 447 U.S. 54, 65 
(1980) (awarding Title VII attorney’s fees to the charg­
ing party for legal work performed before the state 
deferral agency) (emphasis added).

In addition to this preference for administrative en­
forcement, Title VII does not provide for a jury trial, 
and its “make whole” remedial provisions do not pro­
vide for punitive or compensatory damages (such as 
damages for pain and suffering.) See Richerson v. Jones, 
551 F.2d 918, 926-28 (3d Cir. 1977), and cases cited. 
Instead, Title VII’s thrust is to encourage conciliation 
and resolution without resort to federal court litigation.

Congress enacted Title VII of the Civil Rights Act of 
1964, 42 U.S.C. § 2000e et seq., to assure equality of 
employment opportunities by eliminating those prac­
tices and devices that discriminate on the basis of 
race, color, religion, sex, or national origin. . . Co­
operation and voluntary compliance were selected as 
the preferred means for achieving this goal. To this 
end, Congress created the Equal Employment Oppor­
tunity Commission and established a procedure 
whereby existing state and local equal employment



16

opportunity agencies, as well as the Commission, 
would have an opportunity to settle disputes through 
conference, conciliation, and persuasion before the 
aggrieved party was permitted to file a lawsuit. In 
the Equal Employment Opportunity Act of 1972, 
Pub. L. 92-261, 86 Stat. 103, Congress amended 
Title VII to provide the Commission with further 
authority to investigate individual charges of dis­
crimination, to promote voluntary compliance with 
the_ requirements of Title VII, and to institute civil 
actions against employers or unions named in a dis­
crimination charge.

Alexander v. Gardner-Denver Co,, 415 U.S. 36, 44 (1974) 
(emphasis added). Accord, Ford Motor Co., v. EEOC, 
458 U.S. 219, 228 (1982), (voluntary compliance can end 
“ discrimination far more quickly than could litigation 
proceeding at its often ponderous pace” ) .

As we will show more fully below, these fundamental 
differences between Title VII and § 1981 were never fully 
considered by Congress or by this Court in Johnson, but 
they have bedeviled the courts ever since § 1981 came to 
be recognized as providing a remedy for race-based em­
ployment discrimination.

C. The Conflict Between The Two Remedial Schemes 
Was Not Meaningfully Addressed In The Title VII 
Debates in 1964 and 1972

Because § 1981 has only recently been applied to pri­
vate contracts, there was very little judicial analysis of 
its impact on employment discrimination in existence 
when Congress enacted and amended Title VII. Thus, it 
is not surprising that the Congressional Title VII de­
bates provided little insight into whether § 1981 and 
Title VII were compatible. To read the briefs of Peti­
tioner and supporting amici, one would gain the impres­
sion that Congress had made a reasoned policy decision 
after taking the Reconstruction Era legislation into ac­
count. That, however, simply was not the case.

The two most pertinent pieces of legislative history 
were the rejection of two amendments— the Tower



17

Amendment in 1964 and the Hruska Amendment in 
1972. In neither instance did Congress show any aware­
ness of the problems it was creating by the juxtaposition 
of two quite different statutory schemes.

1. The 1964 Tower Amendment

The Petitioner argues that when Congress in 1964 re­
jected Senator Tower’s Amendment which would have 
made Title VII the exclusive remedy for employment dis­
crimination, it was “ clear that members of the Senate, 
including Senator Ervin, believed that § 1981 already 
prohibited such private discrimination,” and that the 
Senate’s rejection of the Tower Amendment, “ma[de] 
clear its intent to retain other statutory remedies.” Peti­
tioner’s Brief on Reargument at 76.

The Tower Amendment, however, was not directed at 
limiting private suits brought under § 1981— indeed, 
§ 1981 was not even mentioned in the debates. 110 Cong. 
Rec. 13650-13652 (1964). Rather, the Tower Amend­
ment was intended to “preclude the harassment of busi­
nessmen, companies, or unions by more than one Fed­
eral agency.” 110 Cong. Rec. at 13650. The Amendment 
stated:

Exclusive Remedy
Sec. 717. Beginning on the effective date of Section 
703, 704, 706, and 707 of this title, as provided in 
section 716, the provisions of this title shall con­
stitute the exclusive means whereby any department, 
agency, or instrument in the executive branch of the 
Government or any independent agency of the 
United States, may grant or seek relief from, or pur­
sue any remedy with respect to, any employment 
practice of any employer, employment agency, labor 
organization, or joint labor-management committee 
covered by this title, if such employment practice 
may be the subject of a charge or complaint filed 
under this title.

Id. Thus, the amendment had nothing to do with pri­
vately-filed court suits: it was directed only at prevent­
ing simultaneous investigations by “ EEOC and the vari­



18

ous departments charged with enforcing the provisions 
of the President’s Equal Employment Commission’s rules 
for Federal contractors.” Id.

2. The 1972 Hruska Amendment

In the 1972 Title VII debates, the Senate rejected an 
amendment proposed by Senator Hruska to the effect that 
a charge filed under Title VII “ shall be the exclusive 
remedy of any person claiming to be aggrieved by an 
unlawful employment practice of an employer, employ­
ment agency or labor organization.” Debates on Hruska 
Amendment to Title VII of the Civil Rights Act of 1964, 
reprinted in Legislative History of the Equal Employ­
ment Act of 1972, 1382 (1972). At several points, § 1981 
was mentioned as an alternative avenue of relief that 
was not to be eliminated. Id. at 1402, 1403 (citing Jones 
v. A. M ayer). Also the House Report cited to two cases 
which had applied § 1981 to private employment discrim­
ination. See Sanders v. Dobbs Houses, Inc., 431 F.2d 
1097 (5th Cir. 1970) ; and Young v. International Tele­
phone & Telegraph Co., 438 F.2d 757 (3d Cir. 1971).

But the debates on this point were fairly perfunctory, 
and— except for the differences in statutes of limitations 
(118 Cong. Rec. 3961-62 (1972))— did not delve into the 
divergent paths taken by these two statutes, nor into 
the problems which this divergence could cause. More­
over, the brief reference to the decided cases mentioned 
above failed to point out that the federal courts had im­
mediately recognized the potential problems that Con­
gress had created and then overlooked.

D. Early Lower Court Decisions Recognized The Fun­
damental Problems Caused By The Coexistence Of 
§ 1981 and Title VII

Around the time that Congress amended Title VII in 
1972 and expanded EEOC’s investigatory and enforce­
ment authority, a number of lower courts found that 
§ 1981 could be used as a parallel means to pursue em­



19

ployment discrimination.9 Unlike Congress, however, 
these courts immediately were bothered by the incon­
sistencies in the statutes and tried to find a way to ac­
commodate the two in order to preserve Title VIFs pur­
poses of voluntary compliance and conciliation.

Thus, several circuits held that “ while Title VII can 
impose no absolute procedural prerequisites on section 
1981 litigation, allowing premature diversion of employ­
ment discrimination claims into court, would weaken Ti­
tle VII conciliation efforts.” Developments in the Law—  
Section 1981, 15 Harv. C.R.-C.L.L. Rev. 29, 240-241 
(1980).10 * 12

The most thoughtful discussion was found in Waters 
v. Wisconsin Steel Works of International Harvester Co., 
427 F.2d 476, 486-88 (7th Cir. 1970), cert, denied sub 
nom. International Harvester Co. v. Waters, 400 U.S. 
911 (1970). Although recognizing that Congress had 
allowed Title VII charging parties to by-pass the EEOC 
and go directly to court under Title VII, the Waters 
decision also stated that:

Despite these indications we are convinced that had 
Congress been aware of the existence of a cause of 
action under section 1981, the absolute right to sue

9 A number of these cases were cited in Johnson v. Railway 
Express, 421 U.S. at 460-61 n.6. See Young v. International Tel. 
& Tel. Co., 438 F.2d 757 (3d Cir. 1971); Brown v. Gaston County 
Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 1971), cert, denied, 
409 U.S. 982 (1972) ; Caldwell v. National Brewing Co., 443 F.2d 
1044 (5th Cir. 1971), cert, denied 405 U.S. 916 (1972); Long v. Ford 
Motor Co., 496 F.2d 500 (6th Cir. 1974); Waters v. Wisconsin Steel 
Works, 427 F.2d 476 (7th Cir.), cert, denied sub nom. International 
Harvester Co. v. Waters, 400 U.S. 911 (1970) ; Brady v. Bristol- 
Meyers, Inc., 459 F.2d 621 (8th Cir. 1972); Macklin v. Spector 
Freight Systems, Inc., 478 F.2d 979 (D.C. Cir. 1973).

10 See also, Exhaustion of Remedies under Title VII (Equal Em­
ployment Opportunity) of Civil Rights Act of 1961 (12 USCS
§§ 2000e, et seq.) as Prerequisite to Maintenance of Action Under
12 USCS §1981 for Employment Discrimination, 23 ALR Fed 
895, 903-916.



20

under that section would have been modified. 
Throughout the legislative history of Title VII, Con­
gress expressed strong preference for resolution of 
disputes by conciliation rather than court action. 
Conciliation was favored for many reasons. By es­
tablishing the EEOC Congress provided an inexpen­
sive and uncomplicated remedy for aggrieved parties, 
most of whom were poor and unsophisticated. Con­
ciliation also was designed to allow a respondent to 
rectify or explain his action without the public con­
demnation resulting from a more formal proceeding. 
Furthermore, the absence of direct government coer­
cion was thought to lessen the antagonism between 
parties and to encourage reasonable settlement. The 
need for voluntary compliance was stressed since 
more coercive remedies were likely to inflame re­
spondents and encourage them to employ subtle 
forms of discrimination.

427 F.2d at 486-87 (emphasis added).
Because Congress placed such strong emphasis on con­

ciliation, the Waters decision concluded: “we do not
think that aggrieved persons should be allowed inten­
tionally to by-pass the Commission without good cause.” 
Id. Thus, the court held that “ an aggrieved person may 
sue directly under section 1981 if he pleads a reasonable 
excuse for his failure to exhaust EEOC remedies.” Id.

The other courts of appeals did not go so far as to 
require the § 1981 plaintiff to prove that he had a reason­
able excuse for not exhausting Title VII remedies. How­
ever, in order to encourage the use of EEOC concilia­
tion facilities, they either ordered or suggested that the 
district courts stay the proceedings in the § 1981 suit 
until conciliation procedures under Title VII were car­
ried out.11 Some of the district courts discussed the

11 See Young v. International Telephone & Telegraph Co., 438 
F.2d at 764; Caldwell v. The National Brewing Company, 443 F.2d 
at 1046; Sanders v. Dobbs Houses, Inc., 431 F.2d at 1101; Macklin 
v. Spector Freight Systems, Inc., 478 F.2d at 997. See also Johnson 
v. Goodyear Tire & Rubber Co., 491 F.2d at 1379 (Back pay under 
§ 1981 cannot begin prior to the effective date of Title V II).



21

problem in harsher terms, recognizing that to entertain 
claims simultaneously under Title VII and § 1981 “would 
make Title VII . . .  a redundancy and in large part an 
absurdity.”  Smith v. North American Rockwell— Tulsa 
Div., 50 F.R.D. 515, 518 (N.D. Okla. 1970), quoted on 
this point in Taylor v. Safeway Stores, Inc., 333 F. Supp. 
83, 87 (D. Colo. 1971).12

E. This Court’s Decisions Construing Other Recon­
struction-Era Civil Rights Statutes Further Recog­
nized That Court-Oriented Private Lawsuits Imperil 
The Purposes Of Title VII

As noted above, this Court’s decision in Johnson v. 
Railway Express pointed out the negative impact that 
§ 1981 employment discrimination litigation would have 
on the proper enforcement of Title VII. But the Court 
concluded that because Congress had made the choice to 
permit two avenues of relief, the Court was “disin­
clined. . . to infer any positive preference for one over 
the other. . . 421 U.S. at 461. But when construing
other Reconstruction-Era statutes, the Court has been 
quite inclined to preserve the Title VII administrative 
enforcement system to the exclusion of private litigation.

1. Brown v. GSA

Thus, in Brown v. General Services Administration, 
425 U.S. 820 (1976), the Court held that Title VII is the 
exclusive remedy for claims of employment discrimina­
tion in federal employment and that the plaintiff could 
not also sue under § 1981. The Court concluded that the 
administrative and judicial remedies of Title VII were 
intended to provide exclusive relief and rejected asser­
tions that this system could coexist with other judicial 
action. The Court stated:

12 The court of appeals subsequently remanded Taylor on this 
point, 524 F.2d 263, 274-75 (10th Cir. 1975), following the issuance 
of this Court’s decision in Johnson, but did not provide any further 
analysis of or solutions to the practical problems discussed in the 
district court’s opinion.



22

Under the petitioner’s theory, by perverse opera­
tion of a type of Gresham’s law, § 717 [of Title 
VII], with its rigorous administrative exhaustion 
requirements and time limitations, would be driven 
out of currency were immediate access to the courts 
under other, less demanding statutes permissible.

425 U.S. at 833.13 The Brown decision also expressed 
concern that the administrative role that Congress gave 
the enforcement agencies “would be eliminated ‘by the 
simple expedient of putting a different label on [the] 
pleadings.’ ”  Id., at 833. The Court in Brown concluded 
that “ [i]t would require the suspension of disbelief to 
ascribe to Congress the design to allow its careful and 
thorough remedial scheme to be circumvented by artful 
pleading.”  Id.

Johnson v. Railway Express was distinguished in 
Broivn— not on policy grounds— but on the fact that the 
legislative history of Title VII had recognized the exist­
ence of the right of private sector employees to sue under 
§ 1981 but had seen no corresponding pre-existing right 
for federal employees. Id., at 83. But this distinction in

13 Courts construing- the Age Discrimination in Employment Act 
of 1967, 29 U.S.C. § 621, et seq., also have recognized that permitting 
claims for compensatory and punitive damages would interfere with 
statutorily-mandated conciliation. See e.g., Rogers v. Exxon Re­
search & Engineering Co., 550 F.2d 834, 840-41 (3d Cir. 1977), 
cert, denied, 434 U.S. 1022 (1978). The court noted that introduc­
ing the “vague and amorphous concept” of pain and suffering dam­
ages into the administrative setting “might strengthen the claim­
ant’s bargaining position” but it also would “ introduce an element 
of uncertainty which would impair the conciliation process.”  550
F.2d at 841. The court also noted that “ [t]he possibility of recover­
ing a large verdict for pain and suffering will make a claimant less 
than enthusiastic about accepting a settlement for only out-of- 
pocket loss in the administrative phase of the case.” Id.

Accord, Slatin v. Stanford Research Institute, 590 F.2d 1292, 1296 
(4th Cir. 1979); Naton v. Bank of California, 649 F.2d 691, 699 
(9th Cir. 1981); Dean v. American Security Insurance Company, 
559 F.2d 1036, 1038 (5th Cir. 1977), cert, denied, 434 U.S. 1066 
(1978); and Sant v. Mack Trucks, Inc., 424 F. Supp. 621, 622 (N.D. 
Calif. 1976).



23
no way solves the problems created by private sector 
§ 1981 suits. It would be naive, at best, to think that 
§ 1981 plaintiffs and their attorneys will be more likely 
to allow their claims to be pursued under Title VII’s re­
quirements merely because the employer operates in the 
private sector.

2. The Novotny Decision

The Court was bothered by identical concerns when it 
held that 42 U.S.C. § 1985(3) does not allow a private 
federal suit for an alleged conspiracy to deprive an in­
dividual of his Title VII rights. See Great American 
Federal Savings & Loan Association v. Novotny, 442 U.S. 
366, 372-78 (1979). There, the Court noted that if a 
private suit were permitted alongside Title VII, “ [t]he 
short and precise time limitations of Title VII would be 
grossly altered.” 442 U.S. at 376. And “ [plerhaps most 
importantly, the complaint could completely bypass the 
administrative process, which plays such a crucial role 
in the scheme established by Congress in Title VII.” Id.u

What this discussion shows, therefore, is that after 
years of consideration of the national problem of employ­
ment discrimination, Congress enacted Title VII as the 
primary means of enforcement. It also established a sys­
tem of administrative requirements that was intended to 
avoid litigation where possible and to encourage the par­
ties and the EEOC to resolve disputes through concilia­
tion and voluntary compliance. Yet the current state of 
the decisional law is that, because Congress allowed 
§ 1981 to be used against employment discrimination, the 
plaintiff need only file a § 1981 pleading in federal court 
to frustrate the entire Title VII scheme. 14

14 See also, Shapiro, Section 1983 Claims to Redress Discrimina­
tion in Public Employment: Are They Preempted by Title VII?, 
35 Am. U.L.Rev. 93, 112 (1985).



24

F. Title VII Is Being Interpreted And Enforced In A 
Manner That Protects The Rights Of Charging Par­
ties Consistent With Federal Antidiscrimination 
Policy

As this Court has recognized repeatedly, Title VIPs 
legislative history demonstrates that its detailed admin- 
istrative/judicial enforcement machinery was carefully 
designed to balance the competing interests involved in 
an employment discrimination complaint. See, e.g., Occi­
dental Life Insurance Co. of California v. EEOC, 432 
U.S. at 355, 359, 372-73. Delegation of enforcement au­
thority to the Commission shifts the burden of prosecu­
tion from the individual complainant, assures employees 
that the agency issuing discrimination guidelines will 
also be the agency enforcing compliance, and encourages 
the settlement of disputes through informal conciliation 
rather than formal judicial proceedings. See Note, De­
velopments in the Law— Employment Discrimination 
and Title VII of the Civil Rights Act of 1961*, 84 Harv. 
L.Rev. 1109, 1200, 1270 (1971).

Ultimate resort to the federal courts also delegates the 
task of investigation and fact-finding to the agency that 
has the specialized knowledge and resources to do so, 
while insuring that the private claimant will receive the 
most complete relief possible. Sape & Hart, Title VII 
Reconsidered: The Equal Employment Opportunity Act 
of 1972, 40 Geo. Wash. L.Rev. 824, 881 (1972).

In addition, potential substantive conflicts between 
Title VII and § 1981 have been resolved in favor of those 
standards adopted by Congress in Title VII— even when 
specific exempting language of Title VII has not been 
found in § 1981.15 Thus, there can be no argument that

15 See e.g., Waters v. Wisconsin Steel Works of International 
Harvester Co., 502 F.2d 1309, 1316, 1320 (7th Cir. 1974), cert, 
denied, 425 U.S. 997 (1976) (seniority system that is valid under 
Title VII cannot be attacked under § 1981); United States v. Truck­
ing Management, Inc., 662 F.2d 36 (D.C. Cir. 1981) ; Chance v. 
Board of Examiners, 534 F.2d 993 (2d Cir. 1976), mod. on other



25

§ 1981 provides more protection than Title VII in de­
fining what discriminatory conduct is prohibited under 
federal law. Indeed, it is Title VII that provides more 
protections, because, unlike § 1981, the EEOC and Title 
VII plaintiffs may proceed under the adverse impact 
theory and are not limited to the disparate treatment 
model. General Building Contractors Ass’n. Inc. v. 
Pennsylvania, 458 U.S. 375 (1982) ; Washington v.
Davis, 426 U.S. 229 (1976).

Charging parties, moreover, have little cause to com­
plain about the way in which Title VII’s procedural re­
quirements have been interpreted since the Act was 
amended in 1972 and the EEOC’s authority was ex­
panded. Indeed, many of the concerns that Title VIPs 
technical requirements would adversely affect individual 
rights have proven to be unfounded. For example, Title 
VII’s charge-filing requirement is not a jurisdictional 
prerequisite and, like § 1981’s period, is subject to waiver, 
estoppel and equitable tolling.* 17 18 Also, the limitations pe­
riod gap between the two statutes has been narrowed 
substantially.17 Moreover, charging parties may receive 
an award of attorney’s fees under Title VII for work done 
in connection with administrative proceedings following 
reference to a state agency.18

grounds, 534 F.2d 1007 (2d Cir. 1976), cert, denied, 431 U.S. 965 
(1977); and United States v. East Texas Motor Freight System, 
564 F.2d 179, 185 (5th Cir. 1977) (same re Executive Order 11246).

M Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982).

17 EEOC v. Commercial Office Products Company, 56 L.W. 4424 
(U.S. May 17, 1988), virtually eliminated the 180-day filing period 
for Title VII. The Court held that the extended 300-day period 
applies in a deferral state even though an individual has not filed a 
timely 180-day charge with the state agency as required under state 
law. By contrast, Goodman v. Lukens Steel Co., 107 S.Ct. 2617, 
requires that § 1981 suits are governed by the state personal injury 
statute of limitations period, which typically is much shorter than 
the contract suit limitations period sought by § 1981 plaintiffs.

18 New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980).



26

EEOC investigations, of course, can be an extremely 
effective enforcement method. To illustrate, the EEOC’s 
investigatory and subpoena enforcement authority has 
been applied much more broadly than would be avail­
able to the individual § 1981 plaintiff.19 And should the 
EEOC decide not to sue, for whatever reason, the infor­
mation developed in its investigation is available to the 
charging party and his attorneys once a private Title 
VII court suit is filed. EEOC v. Associated Dry Goods 
Corp., 449 U.S. 590 (1981). See also, the discussion 
above at pp. 12-13.

The Court also should be aware of several relatively 
recent initiatives adopted by the EEOC to increase sub­
stantially the advantages to charging parties of proceed­
ing under Title VII. First, effective August 1, 1987, the 
EEOC implemented a final rule permitting charging par­
ties to appeal “no-cause” determinations issued by the 
agency’s district directors. See 29 C.F.R. Part 1601.19. 
This procedure was adopted to assure that agency in­
vestigations were impartial, thorough, legally sound, pro­
fessional, and conducted in a manner that would minimize 
the need for charging parties to sue without EEOC as­
sistance.

Also, on February 5, 1985, the EEOC adopted a Policy 
Statement on Remedies and Relief for Individval Victims 
of Discrimination, 8 Fair Empl. Prac. (BNA), 401:2615- 
401:2618. This policy w7as adopted in response to con­
cerns that cases may be settled with less than full relief 
for discrimination victims. The policy provides for: full 
(not partial) back pay; enhanced reinstatement or place­
ment rights; new notice posting requirements to inform 
other employees of discrimination problems; and poten­
tial direct disciplinary action against offending super­
visory personnel.

In conjunction with its enhanced remedial policy, the 
EEOC also has adopted tougher policies and procedures for 
dealing with recalcitrant employers and in seeking sub­

19 EEOC v. Shell Oil Company, 466 U.S. 54 (1984).



27

poenas.20 Under these policies, when an employer fails 
to comply with requests for information in a timely or 
complete manner, EEOC district directors are directed 
to take one or more actions. These include: immediate 
issuance of a subpoena; proceeding more directly to litiga­
tion; and drawing an adverse inference against a re­
spondent as to the evidence sought when records are de­
stroyed or not maintained.

Moreover, when the EEOC decides to sue an employer, 
it may do so unencumbered by the class action limita­
tions of Rule 23 of the Federal Rules of Civil Proce­
dure.21 As this Court noted, by expanding the EEOC’s 
enforcement powers in 1972, “ Congress sought to imple­
ment the public interest as well as to bring about more 
effective enforcement of private rights. . . . The EEOC 
was to bear the primary burden of litigation, but the 
private action previously available under § 706 [of Title 
VII] was not superseded.” 446 U.S. at 325-36.

Further, “ EEOC enforcement actions are not limited 
to the claims presented by the charging parties. Any 
violations that the EEOC ascertains in the course of a 
reasonable investigation of the charging party’s complaint 
are actionable.” 446 U.S. at 331. EEOC also may pro­
ceed unencumbered by Rule 23’s requirement that an 
individual’s claim be typical of other class members.22 
Id. And when the district court finds that discrimination 
has occurred, it “has not merely the power but the duty 
to render a decree which will so far as possible eliminate 
the discriminatory effects of the past as well as bar like

20 See 29 C.F.R. 1601.16(b)(1) and (2) [subpoenas]; and EEOC: 
Investigative Compliance Policy, 8 Fair Empl. Prac. (BNA) 401- 
2625-40:2626.

21 General Telephone Company of the Northwest, Inc. v. EEOC, 
446 U.S. 318 (1980).

22 Compare, General Telephone Co. of the Southwest v. Falcon, 
457 U.S. 147 (1982) (applicant cannot be class representative for 
incumbent employees).



28

discrimination in the future.” Albemarle Paper Company 
v. Moody, 422 U.S. 405, 418 (1975) (emphasis added).

Accordingly, EEOC-brought Title VII actions benefit 
the public interest, rather than purely private concerns, 
in many ways that § 1981 suits do not. Individual plain­
tiffs, quite frankly, often are motivated primarily by an 
attempt to extract the maximum possible monetary 
award or settlement, unencumbered by administrative 
requirements intended to eliminate discrimination on a 
broader scale by the involvement of an expert agency de­
signed to give assistance to all victims of discrimination.

CONCLUSION
As the discussion above indicates, the emphasis in 

§ 1981 on maximum individual relief encourages plain­
tiffs to by-pass Title VII, thereby negating the ability of 
the EEOC to seek relief for all victims through its en­
hanced ability to investigate beyond an individual prob­
lem and then to conciliate charges of discrimination. 
EEAC urges the Court to use this case as a vehicle to 
explicate these practical considerations and to emphasize 
that the dichotomy between these coexisting remedial 
schemes often impedes in the proper functioning of the 
nation’s civil rights laws.

Respectfully submitted,

Robert E. W illiam s 
Douglas S. M cD owell * 

M cGuiness & W illiam s 
Suite 1200
1015 15th Street, N.W. 
Washington, D.C. 20005 
(202) 789-8600 

Attorneys for Amicus Curiae 
Equal Employment 
Advisory Council

August 13,1988 * Counsel of Record