Lorillard v. Pons Petition and Briefs

    The Supreme Court 
of the United States

Lorillard, A  D ivision of 
Loew 's Theatres
versus

Frances P. Pons

Petition and Briefs

Law Reprints
Labor Series 
Volume 11, no. 9 
1977/1978 Term



No.

IN THE

Supreme (Eaurt o f tfje States
OCTOBER TERM, 1976

LORILLARD, A  D IV IS IO N  O F

L O E W S  THEATRES, INC.,
Petitioner,

FRAN C ES  P. PONS,
Respondent.

PETITION FOR A  W RIT  O F CERT IO RAR I TO 

THE UNITED STATES CO U RT  O F  APPEALS 

FOR THE FOURTH C IRCU IT

Thornton H. Brooks 

M. Daniel McGinn 

P. O. Drawer U

Greensboro, North Carolina 27402 

Attorneys for Petitioner



TABLE OF CONTENTS

Opinions Below

Page

I

Jurisdiction

Question Presented __________________________  2

Constitutional Provisions and Statutes Involved ______________  2

Statement of the C a s e ____________________________________  2

Reasons for Granting the W r i t ______________________________  3

I. The decision below conflicts with the decision 
of the Court of Appeals for the Sixth Circuit 
as to the proper interpretation of the Seventh
Amendment and 29 U. S. C. 626(b) and (c) ________  3

2. The decision below raises important and 
recurring problems concerning the proper 
interpretation of 29 U. S. C. 626(b) and (c) 
which have not been settled by this C ou rt___________  4

Conclusion _______________________________________________  6

Appendix

A  - Judgment, United States Court of A p p e a ls_____________  la

B - Opinion, United States Court of A p p e a ls______________ 2a

C  - Memorandum, United States District Court _____________  7a

D - Moreloclr v. N C R  Corp., Op inion, United States
Court of Appeals for the Sixth C irc u it____________ 12a

i



TABLE OF CASES

Page

Albemarle Paper Co. y . Moody, 442 U. S.
405 (1975) ___________________________________  4

Curiis y . Loether, 415 U. S. ! 89 (1974) ---------------------  4
Harkless y . Sweeney Independent School Dist.,

427 F. 2d 319 (5th Cir. 1970), cert.
denied 400 U. S. 991 (1971) ___________________  4

LaRue y . General Tel. Co. of Southwest,
545 F. 2d 546 (5th Cir. 1977) ___________________  5

Laugesen y . Anaconda Co., 510 F. 2d 307
(6th Cir. 1975) ________________________________  6

Lynch y . Pan American World Airways, 415 F. 2d 764
(5th Cir. 1973) ________________________________  4

Morelock v. N C R  Corp., 546 F. 2d 682
(Decided 20 December 1976) ---------------------------  3. 6

Statutes:
Age Discrimination in Employment Act of 

1967 (29 U. S. C. 626):
Section 626(b) ________________________________  2, 3, 4, 5
Section 626(c) ________________________________  2, 3, 4, 5
Section 626(d) ________________________________  &

Seventh Amendment to the Constitution of
the United S ta te s_______________________________  2

Title VII of the Civil Rights Act of 1964 ---------------------  3, 4
Title VIII of the Civil Rights Act of 1968,

42 U. S. C. 3 6 1 2 __________________   4
28 U. S. C. 1254(1) _______________________________  I
28 U. S. C. 1292(b) _______________________________ 3
42 U. S. C. 1981 ___________________________________  4
42 U. S. C. 1983   4

Miscellaneous:

Developments in the Law - Employment Discrimi­
nation and Title VII of the Civil Rights Act of 
1964, 84 Harv. L. Rev. 1109 (1971) ____________  5

Report of Secretary of Labor to Congress,
January 30, 1976     5

ii



IN THE

Supreme ( t a r t  of tt|g MmteSi £>tatea

OCTOBER TERM, 1976

No.

LORILLARD, A  D IV IS ION  O F

L O E W S  THEATRES, INC.,
Petitioner,

v.

FRAN C ES  P. PONS
Respondent.

PETITION FOR A  W RIT  O F CERT IORAR I TO 

THE UNITED STATES CO U RT  OF APPEALS 

FOR THE FOURTH C IRCU IT

The petitioner, Lori I lard, petitions for a writ of certiorari to re­
view the judgment and opinion of the United States Court of A p ­
peals for the Fourth Circuit entered in this proceeding on 2 Febru­
ary 1977.

O P IN IO N S  BELOW

The opinion of the Court of Appeals decided 2 February 1977 
(App., infra, pp. 2a - 7a) is not yet reported. The Memorandum 
of the District Court entered 21 January 1976, 69 F.R.D. 576, 13 
FEP Cases 444, appear in the Appendix (pp.7a-l2a).

JUR ISD ICT ION

The judgment of the Court of Appeals was entered on 2 Febru­
ary 1977 (Appendix, p. la). This petit! on for certiorari was filed 
within ninety days of that date. The jurisdiction of this Court is in­
voked under 28 U. S. C. 1254(1).

I



QUEST IO N  PRESENTED

Whether the Seventh Amendment, or the Age Discrimination in 
Employment Act (29 U. S. C. 626), requires a jury trial upon de­
mand of one of the parties in an action for injunctive relief and 
back wages under that Act.

C O N ST ITU T IO N A L PROV IS IONS A N D  
STATUTES INVOLVED

The Seventh Amendment to the Constitution of the United States 
provides:

In Suits at common law, where the value in controversy 
shall exceed twenty dollars, the right of trial by jury shall 
be preserved, and no fact tried by a jury, shall be other­
wise reexamined in any Court of the United States, than 
according to the rules of the common law.

29 U. S. C. 626(b) and (c) provide in pertinent part:

(b) . . .  In any action brought to enforce this (Act) the 
court shall have jurisdiction to grant such legal or equit­
able relief as may be appropriate to effectuate the pur­
poses of this (Act), including without limitation judgments 
compelling employment, reinstatement or promotion, or 
enforcing the liability for amounts deemed to be unpaid 
minimum wages or unpaid overtime compensation under 
this section. . . .

(c) Any person aggrieved may bring a civil action in 
any court of competent jurisdiction for such legal or equit­
able relief as will effectuate the purposes of this chap­
ter: . . .

STATEMENT O F  THE C A SE

This action under the Age Discrimination in Employment Act was 
commenced by respondent herein, a former female employee of 
Lorillard, who alleged in her complaint that when she was 48 years 
of age, on 31 January 1975, she was terminated by her employer 
as a part of its policy to discharge older employees and to retain 
young people as employees wherever possible. Respondent sought 
injunctive reinstatement, monetary damages consisting of lost wages 
from date of discharge to date of judgment, together with an equal 
amount of liquidated damages, costs and attorney's fees.

Respondent demanded trial by jury on all issues of fact. Peti- 
2 tioner's motion to strike respondent's demand for a jury trial was 

sustained by the District Court, it ruling that actions for lost wages

2



under Title Vil of the Civil Rights Act of 1964, and the Courts of 
Appeals that have ruled on the subject, have universally denied a 
jury trial in such actions (App., p. 8a). An interlocutory appeal 
of the District Court order to the Court of Appeals was allowed. 
28 U. S. C. 1292(b); FRAP 5.

The order of the District Court striking petitioner's demand for 
a jury trial was vacated by the Court of Appeals on the ground 
that the inclusion of the phrase "legal . . . relief" in 29 U. S. C. 
626(b) and (c) empowers a federal court to grant parties in A D EA  
actions a Constitutional and statutory right to a jury trial. Accord­
ingly, the claim for back pay was remanded for trial by a jury. 
(App., pp. 6a ).

REASO N S FOR G R A N T IN G  THE W RIT

I. The decision below conflicts with the deci­
sion of the Court of Appeals for the Sixth 
Circuit as to the proper interpretation of the 
Seventh Amendment and 29 U. S. C. 626(b) 
and (c)

The Fourth Circuit has here held that the relief sought in an 
A D EA  action constitutes a suit "at common law" as embodied in 
the Seventh Amendment, and that the Age Act by its terms ex­
cludes the non-jury concept and commands the impanelment of a 
jury, if requested, in claims for lost wages.

In so holding, the Fourth Circuit conceded that its interpreta­
tion of the Seventh Amendment and 29 U. S. C. 626(b) and (c) 
conflicts with that adopted by the Sixth Circuit in Morelock v. N C R  
Corp., 546 F.2d 682 (decided 20 December 1976). (See 
App., pp. 12a- 19a).

In Morelock, the action instituted pursuant to A D E A  was tried 
by a jury, with a verdict being returned in favor of the plaintiff; 
upon motion by defendant, the district court granted a judgment 
notwithstanding the verdict and a conditional new trial in favor 
of defendant. On appeal, the Sixth Circuit read the A D E A  to be 
an offspring of Title VII, noting that the prohibitions of the two 
Acts are virtually identical in terms. Accordingly, that Court held 
that the monetary issues to be tried in the case were equitable in 
nature just as in Title VII actions and were not suitable for trial by 
jury, and further held that no constitutional right to a jury trial 
existed in the action.

The Fourth Circuit herein makes no attempt to differentiate the 
conclusion that it reached from that reached by the Sixth Circuit g 
in Morelock.

3



This direct conflict between the decisions of the Fourth and the 
Sixth Circuits is of continuing importance and plainly justifies the 
grant of certiorari to review the judgment below and resolve the 
conflict.

2. The decision below raises important and re­
curring problems concerning the proper inter­
pretation of 29 U. S. C. 626(b) and (c) which 
have not been settled by this Court

The Fourth Circuit's opinion in this case reflects important consti­
tutional, statutory and policy considerations growing out of efforts 
to demand jury trials in employment discrimination cases. And, par­
ticularly since this Court has not had occasion to address itself 
to this matter since the prohibition of race, color, religious and no­
tional original discrimination embodied in Title VII of the 1964 
Civil Rights Act, and the prohibition of age discrimination embodied 
in the Age Discrimination in Employment Act of 1967, were enacted 
into law, there are compelling reasons why some definitive guide­
lines in the application of 29 U. S. C. 626(b) and (c) should now 
be marked by this Court.

Curtis v. Loether, 415 U. S. 189 (1974), involved a construction 
of Title VIII of the Civil Rights Act of 1968, 42 U. S. C. 3612, the 
fair housing provisions of the Act, and the Court stated:

. . .  A  comparison of Title VIII with Title VII of the Civil 
Rights Act of 1964, where the Courts of Appeals have held 
that jury trial is not required in an action for reinstate­
ment and backpay, is instructive, although we of course 
express no view on the jury trial issue in that context. In 
Title VII cases the Courts of Appeals have characterized 
backpay as an integral part of an equitable remedy, a 
form of restitution. . . .  (415 U. S. at 196-7)

In Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975), a Title 
VII action, it was noted:

To the extent, then, that the district court retains sub­
stantial discretion as to whether or not to award backpay 
notwithstanding a finding of unlawful discrimination, the 
nature of the jurisdiction which the court exercises is equit- 
table, and under our cases neither party may demand a 
jury trial. (422 U. S. at 443) (Rehnquist, J., concurring)

Similarly, a jury trial has been denied in an action for back pay 
under 42 U. S. C. 1983. Harkless v. Sweeney Independent School 
Dist., 427 F. 2d 319 (5th Cir. 1970), cert, denied 400 U. S. 991 
(1971), and in an action for back pay and punitive damages under 
42 U. S. C. 1981. Lynch v. Pan American World Airways, 475 F.2d 
764 (5th Cir. 1973).

4



See generally Developments in the Law - Employment Discrimin­
ation and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 
1109, 1266 (1971).

Efforts to demand jury trials in A D E A  actions are of common, 
if not increasing, occurrences and both litigants and lower courts 
urgently need the assistance of this Court in understanding the poli­
cies and the language of the employment anti-discrimination acts, 
including 29 U. S. C. 626(b) and (c).

This case presents an issue posed by numerous similar discrimin­
ation cases throughout the nation which are pending at the trial 
level. There are seven A D E A  actions pending in the Middle District 
of North Carolina that await a determination of the jury trial issue 
posed by this Petition.

The Secretary of Labor reported in January 1976 that "since 
June 12, 1968, the effective date of the Age Discrimination in Em­
ployment Act, the Department of Labor has instituted over 255 
court actions," including the institution of 30 suits in calendar year 
1975.1

The total number* 2of employment discrimination actions of all 
types that were filed in the District Courts during the last four years 
are:

Fiscal Year
of No.

1973 1,787
1974 2,472
1975 3,931
1976 5,321

If jury trials are entitled to be granted at the request of either party 
to these actions, a very substantial additional workload will be im­
posed upon District Courts within the Fourth Circuit.

Furthermore, it is doubtful that an A D E A  trial is within the capa­
bilities of a jury —  at least experience has proven that such trials 
often result in judicial time wasted endeavors. For example, see 
LaRue v. General Tel. Co. of Southwest, 545 F. 2d 546 (5th Cir. 
1977), where the A D EA  action was tried before a jury and after

Report ot Secretary of Labor to Congress pursuant to Section 13 of 
the ADEA, January 30, 1976, page 12.

2 Information furnished by the Director of the Administrative Office of 
the United States Courts. The actions are not coded as to Acts in- 5 
volved.

5



plaintiff had presented his evidence and rested, the Court granted 
defendant's motion for an instructed verdict based upon a finding 
that plaintiff had failed to give notice to the Secretary of Labor 
of his intent to file a private suit within 180 days of the alleged un­
lawful practice as required by 29 U, S. C. 626(d). Morelock v. 
N C R  Corp., supra, was tried to a jury, but upon motion by defend­
ant, the District Court granted a judgment notwithstanding the ver­
dict and awarded a conditional new trial in favor of NCR. Laugesen 
v. Anaconda Co., 510 F. 2nd 307 (6th Cir. 1975), involved an action 
by plaintiff claiming he was unlawfully discharged because of his 
age in violation of ADEA, and was tried before a jury without ob­
jection, but the Court of Appeals reversed and remanded for a 
new trial because of error in instructions to the jury.

It is, therefore, of widespread public importance that the Court 
consider the issue here presented so that the lower courts may be 
guided authoritatively with respect to the constitutional and statu­
tory rights for jury trials in employment discrimination actions.

C O N C L U S IO N

For these reasons, a writ of certiorari should issue to review the 
judgment and opinion of the Fourth Circuit.

Respectfully submitted,

Thornton H. Brooks 

M. Daniel McGinn 

P. O. Drawer U

Greensboro, North Carolina 27402 

Attorneys for Petitioner

6 March 13, 1977

6



Appendix

A  - Judgment, United States Court of Appeals

B - Opinion, United States Court of Appeals

C  - Memorandum, United States District Court

D - Moreloclc v. N C R  Corp., Opinion, United States 
Court of Appeals for the Sixth Circuit





IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976 
No. 76-1346

LORILLARD, A DIVISION OF LCEW'S THEATRES, 
INC. ,

Petitioner, 
v.

FRANCES P. PONS,
Respondent.

BRIEF IN OPPOSITION TO PETITION FOP- 
WRIT OF CERTIORARI

Norman B. Smith 
Smith,Patterson,Follin, 
Curtis & James 

704 Southeastern Building 
Greensboro, N. C. 27401
Counsel for Respondent

9



INDEX
Page

Table of Citations i i

Citations to Opinions 2

J u r is d ic t io n 2

Questions Presented 2

Constitutional Provisions and 
Statutes Involved 3

Statement of the Case 4

Reasons for Denying the Writ
The decision of the court of 

Appeals was plainly required by this 
Court's decision in Curtis v. Loether, 
415 U.S. 189 (1974), and a proper con­
struction of the Age Discrimination in 
Employment Act itself, and should not
be disturbed 6

Conclusion 11

l

10



TABLE OF CITATIONS
CASES: Page
Curtis v. Loether, 415 U.S.
189 (1974) 6,8,10
Dairy Queen, Inc. v. Wood, 369 U.S.
469 (1962) 10
Fleitmann v. Welsbach Street
Lighting Co., 240 U.S. 27 (1916) 10
LaChapelle v. Owen-Illinois, Inc.,
513 F .2d 286 (5th Cir. 1975) 9
McClanahan v. Mathews, 440 F .2d 320 
(6th Cir. 1971) 7
Morelock v. NCR Corp., 546 F.2d 682 
(1976) 6
Neal v. Braughton, 111 F.Supp. 775 
(E.Ark. 1953) 10
Ochoa v. American Oil Company, 338 
F.Supp. 914 (S.C.Tex. 1972) 9
Olearchick v. American Steel 
Foundries, 73 F.Supp. 273 (W.D.Pa.
1947) 7
Ross v. Bernhard, 396 U.S. 531 (1970) 9-10
St. Clair v. I.ocal Union No. 515, 422 
F.2d 128 (6th Cir. 1969) 9

i i

11



CASES: Pa<3e
Wirtz v. Jones, 340 F.d 901 
(5th Cir. 1965) 7
Wirtz v. Turner, 330 F .2d 11 
(7th Cir. 1964) 7,10

STATUTES:
23 U.S.C. sec. 1254(1)
29 U.S.C. sec. 206 7
29 U.S.C. sec. 207 7
29 U.S.C. sec. 211 3
29 U.S.C. sec. 215 3
29 U.S.C. sec. 216 3,7
29 U.S.C. sec. 217 3
29 U.S.C. sec. 621 4
29 U.S.C. sec. 623 3
29 U.S.C. sec. 626 2-4,6-8
42 U.S.C. sec. 3612 10
42 U.S.C. sec. 2000e-5 8

CONSTITUTIONAL PROVISIONS:
Seventh Amendment to the
Constitution of the United States 2,3,5,

9-11
iii

12



MISCELLANEOUS:
James, Right to a Jury Trial in
Civil Actions, 72 Yale L.J. 655 (1963) 9
United States Equal Employment Opportunity 
Commission, Legislative History of Titles 
VII and XI of Civil Rights Act of 
1964, 8



IN THE SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1976 
No. 76-1346

IORILLARD, A DIVISION OF LOEW'S THEATRES, 
INC. ,

Petitioner,

v.

FRANCES P. PONS,
Respondent.

BRIEF IN OPPOSITION TO PETITION FOR 
WRIT OF CERTIORARI

Respondent Frances P. Pons respectfully 
opposes the petition for writ of certiorari 
in this proceeding, seeking to review the 
judgment of the United States Court of 
Appeals for the Fourth Circuit entered in 
this cause on February 2, 1977.

14



OPINIONS BELOW
The opinion of the United States Court 

of Appeals for the Fourth Circuit is not yet 
reported, but is set out in the petition for 
certiorari (App. 2a-7a). The opinion of the 
United States Eistrict Court for the Middle 
District of North Carolina is reported at 
69 F.R.D. 576, and 13 F.E.P.Cas. 444, and is 
set out in the petition for certiorari (App. 
7a-12a).

JURISDICTION
Petitioner seeks to invoke this Court's 

jurisdiction under 28 U.S.C. sec. 1254(1).
The judgment of the United States Court of 
Appeals for the Fourth Circuit was entered 
on February 2, 1977. The petition for 
certiorari was filed within 90 days of that 
date.

QUESTIONS PRESENTED
Whether either the Seventh Amendment, 

or the Age Discrimination in Employment Act 
(29 U.S.C. sec. 626), requires a jury trial 
upon demand of one of the parties in an action 
under that statute for damages and injunctive 
relief.

2

15



CONSTITUTIONAL PROVISIONS 
AND STATUTES INVOLVED

1. The Seventh Amendment to the Consti­
tution of the United States provides:

In Suits at common law, where 
the value in controversy shall ex­
ceed twenty dollars, the right of 
trial by jury shall be preserved, 
and no fact tried by a jury, shall be 
otherwise reexamined in any Court of 
the United States, than according to 
the rules of the common law.

• 2. The Age Discrimination in Employment 
Act, 29 U.S.C. sec. 626(b) and (c) provide in 
pertinent part:

(b) The provisions of this chap­
ter shall be enforced in accordance 
with the powers, remedies, and pro­
cedures provided for in sec. 211(b),
216 (except for subsection (a) there­
of) , and 217 of this title and sub­
section (c) of this section. Any 
act prohibited under section 623 of 
this title shall be deemed to be a 
prohibited act under section 215 of 
this title. Amounts owing to a per­
son as a result of a violation of 
this chapter shall be deemed to be un­
paid minimum wages or unpaid overtime 
compensation for purposes of sections 
216 and 217 of this title: Provided,

3

16



That liquidated damages shall be 
payable only in cases of willful 
violation of this chapter. In 
any action brought to enforce 
this chapter the court shall have 
jurisdiction to grant such legal 
or equitable relief as may be 
appropriate to effectuate the 
purposes of this chapter, in­
cluding without limitation judg­
ments compelling employment, re­
instatement or promotion, or en­
forcing the liability for amounts 
deemed to be unpaid mimimum wages 
or unpaid overtime compensation 
under this section,

(c) Any person aggrieved may 
bring a civil action in any compe­
tent jurisdiction for such legal 
or equitable relief as will effec­
tuate the purposes of this chapter

STATEMENT CF THE CASE
This is an action brought under the Age 

Discrimination in Employment Act of 1967, 29 
U.S.C. sec. 621, et seq. The complaint prays 
for "monetary damages" consisting of wages 
from date of discharge to date of judgment, to­
gether with an equal amount of liquidated 
damages; and the complaint also requests an in­
junction requiring that plaintiff be reinstated

4

17



as an employee of defendant. A jury trial 
demand is set out in the complaint.

Defendant moved to strike plaintiff's 
demand for jury trial. The United States dis­
trict Court for the Middle District of North 
Carolina entered a memorandum opinion ruling in 
defendant1s favor and entered an order striking 
plaintiff's demand for jury trial. The dis­
trict court certified this issue for interlocu­
tory appeal to the United States Court of 
Appeals for the Fourth Circuit, and that court 
granted plaintiff's petition for permission to 
appeal.

While the case was pending in the court 
of appeals, plaintiff filed a motion to amend 
the complaint setting forth a claim for puni­
tive damages. This motion was remanded by 
the court of appeals for presentation to the 
district court.

The United States Court of Appeals in an 
opinion by Senior Circuit Judge Albert V. Bryan 
reversed the district court, holding that plain­
tiff is entitled to a jury trial by virtue of 
the Seventh Amendment. Circuit Judge Butzner 
wrote a concurring opinion in which he stated 
his view that plaintiff's right to jury trial 
was derived from a construction of the Age Dis­
crimination in Employment Act itself, and that 
recourse to the Seventh Amendment is not neces­
sary.

5

18



REASONS FOR DENYING THE WRIT

THE DECISION OF THE COURT OF APPEALS 
WAS PLAINLY REQUIRED BY THIS COURT'S 
DECISION IN CURTIS v. LCETHER, 415 
U.S. 189 (1974), AND A PROPER CON­
STRUCTION OF THE AGE DISCRIMINATION 
IN EMPLOYMENT ACT ITSELF, AND SHOULD 
NOT BE DISTURBED.
The petition for certiorari correctly 

points out that the United States Court of 
Appeals for the Sixth Circuit has decided a 
case, Morelock v. NCR Corp., 546 F.2d 682 (1976),
which Is directly in conflict with the decision 
of the United States Court of Appeals for the 
Fourth Circuit in this case. The decision in 
the present case was clearly correct and should 
not be disturbed, however. Should a petition 
for certiorari be filed in the Morelock case, 
that case should be summarily reversed.

The Age Discrimination in Employment Act 
of 1967 specifically provides for the granting 
of appropriate "legal or equitable relief." 29 
U.S.C. sec. 626 (b), (c). The enumerated specific 
forms of relief are, "including without limita­
tion judgments compelling employment, reinstate­
ment or promotion, or enforcing the liability 
for amounts deemed to be unpaid mimiirum wages or 
unpaid overtime compensation . . 29 U.S.C.
sec. 626(b). 6

6

19



Section 626 (b) also incorporates by re­
ference the private remedy provisions of the 
Fair Labor Standards Act, 29 U.S.C. sec. 216(b), 
that "Any employer who violates the provisions 
of section 206 or 207 of this title shall be 
liable to the employee or employees affected in 
the amount of their unpaid miminum wages, or 
their unpaid overtime compensation, as the case 
may be, and in an additional equal amount as 
liquidated damages."

Under section 216 (b) the courts have uni­
formly held that there is a right to a trial 
by jury. KcClanahan v. Mathews, 440 F.2d 320 
(6th Cir. 1971); Wirtz v. Jones, 340 F.2d 901 
(5th Cir. 1965); Olearchick v. American Steel 
Foundries, 73 F .Supp. 271 (W.D.Pa. 194?);
Wirtz v. Turner, 330 F.2d 11 (7th Cir. 1964).

The term "legal relief" set out in the Age 
Discrimination in Employment Act clearly relates 
to the enumerated remedy of "enforcing the lia­
bility for amounts deemed to be unpaid mimimum 
wages or unpaid overtime compensation under this 
section," and also may relate to other types of 
legal claims, such as common law damage claims, 
which are not specifically enumerated in the 
statute.

The Congressional intent on the question of 
availability of jury trial is plain from the 
face of the statute. Both legal and equitable re­
lief are specifically mentioned in the section 
on remedies, and Congress must be deemed to have 
known the consistent case law rule affording jury

7

20



trials under the private remedy provision of the 
Fair Labor Standards Act, when that provision 
was incorporated by reference into the Age 
Discrimination in Employment Act. There is 
nothing inconsistent with this result to be 
found in the legislative history.

In contrast, Title VII of the Civil Rights 
Act of 1964 , 42 U.S.O. sec. 2C0Ce-5 (g) , refers 
only to injunction and similar equitable reme­
dies and "any other equitable relief as the 
court deems appropriate." The legislative his­
tory of Title VII makes it clear that neither 
its supporters nor its opponents anticipated 
that jury trials would be available under this 
law. United States Equal Employment Opportunity 
Commission, Legislative History of Titles VII 
and XI of Civil Rights Act of 1964, pp. 2043, 
2046-2050, 3379-3382, 3403-3409, 3441, 3467, 
3295-3296. Petitioner would invoke several de­
cisions cf the courts of appeals holding that 
jury trials cannot be claimed in Title VII ac­
tions , and would argue that by analogy these 
authorities should be followed here. It is im­
portant to note that this Court has deliberately 
left open the issue of jury trials in Title VII 
cases. Curtis v. Loether, 415 U.S. 189, 196-197 
(1974) . Although there are certain similarities 
between the Age Discrimination in Employment Act 
and Title VII of the Civil Rights Act of 1964, 
there are also important differences, including 
markedly different agency enforcement procedures 
and administrative exhaustion requirements (com­
pare 42 U.S.C. sec. 2000e-5 with 29 U.S.C. sec. 
626), and the unavailability of class actions

8

21



under the Age Discrimination in Employment Act 
(e.g., LaChapelle v. Owen-Illincis, Inc., 513 
F .2d 286 (5th Cir. 1975)).

A jury trial must be provided in an age 
discrimination case, not only because Congress 
intended to make it available, but also because 
the Seventh Amendment requires it. In Ross v. 
Bernhard, 396 U.S. 531 (1970), and other recent 
cases of this Court it is established that the 
Seventh Amendment compels a jury trial if (1) 
the issue is "legal" rather than "equitable" 
under the custom of the courts prior to the 
merger of lav; and equity, (2) the remedy sought 
is legal, not equitable, and (3) the issue is 
triable to the jury given their practical abi­
lities and limitations. James, Fight to a Jury 
Trial in Civil Actions, 72 Yale L .J . 655 [1963).

First, under the Age Discrimination in 
Employment Act, the issue is "legal" rather than 
"equitable" under pre-merger custom. A claim 
of employment discrimination with a prayer for 
lost wages is analogous to the common lav; action 
for breach of contract by wrongful discharge.
St. Clair v. Local Union No. 515, 422 F .2d 128 
(6th Cir. 1969); Ochoa v. American Oil Company, 
338 F.Supp. 914 (S.D.Tex. 1972).

Second, the plaintiff is seeking a legal, 
not an equitable, remedy. In her complaint she 
prayed for monetary damages. A.lthough plain­
tiff's cause of action is a statutory creature 
and not of common law origin, it is well estab­
lished that a jury trial is available in causes 
of action based on modern statutes, vvhere a claim

9

22



for legal relief is made. Dairy Queen, Inc, v. 
Wood, 369 U.S. 469 (1962); Fleitmann v. Welsbach 
Street Lighting Co., 240 U.ST 27 (l9l6). In 
addition to her prayer for monetary damages, 
plaintiff also requested the equitable relief 
of reinstatement; this does not dispossess her 
of her jury trial right, because "there is a 
right to a jury trial on the legal claims which 
must not be infringed either by trying the legal 
issues as incidental to the equitable ones or by 
a court trial of a common issue existing between 
the claims." Ross v. Bernhard, 396 U.S. at 538.

Third, the issue is within the practical 
abilities and limitations of the jurors. The 
computations of damages are governed by well 
established formulae, are mathematically simple, 
and may be reasonably estimated when the exact 
amount due cannot be ascertained. Wirtz v.
Turner, 330 F.2d 11 (7th Cir. 1964); Neal v. 
Braughton, 111 F.Supp. 775 (D.Ark. 19537^
Certainly age discrimination cases do not ap­
proach the complexity of accounting actions for 
trademark violations held to be subject to trial 
by jury in Dairy Queen, Inc, v. WTood, supra.

The decision of the court of appeals in the 
present case is particularly supported by this 
Court's case of Curtis v. Loether, 415 U.S. 189 
(1974). This case holds that there is a Seventh 
Amendment jury trial right in an action brought 
under the Fair Housing Law, Title VIII of the 
Civil Rights Act, 42 U.S.C. sec. 3612, which pro­
vides for injunctive relief and both actual and 
punitive "damages." Relying on Dairy Queen, Inc. v. 
Wood, and other decisions in a long line of cases

10

23



upholding the right to jury in civil actions, 
the court said, "The Seventh Amendment does apply 
to actions enforcing statutory rights, and re­
quires a jury trial upon demand, if the statute 
creates legal rights and remedies, enforceable 
in an action for damages in the ordinary courts 
of law." 415 U.S. at 194.

CONCLUSION
For the reasons set forth above, the 

petition for writ of certiorari should be denied.
Respectfully submitted,

Norman B. Smith
Smith,Patterson,Foilin, 
Curtis & James 

704 Southeastern Building 
Greensboro, IT. C. 27401 
Telephone: 919-274-2992

Counsel for Respondent 11

11

24



IN THE
£hqjrm? (Eourt of th? Unttpii Staffs

October T erm, 1977

No. 76-1346

L orillard, A Division of Loew’s Theatres, Inc.,
Petitioner,

v.
Prances P. P ons, Respondent.

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

BRIEF FOR PETITIONER. LORILLARD.
A DIVISION OF LOEW'S THEATRES. INC.

T hornton H . B rooks 
M. Daniel M cGinn 

P. O. Drawer U 
Greensboro, North Carolina 27402
Attorneys for Lorillard, a Division 
of Loew’s Theatres, Inc.

Of Counsel:
Brooks, P ierce, M cL endon,

H umphrey & L eonard 
P. O. Drawer U
Greensboro, North Carolina 27402

25





Opinions B elow ....................................................................  1

J tjbisdiction ............................................................................  2

Constitutional P rovision and Statutes I nvolved . . .  2

Question P resented ......................................  3

Statement ...................  3

A rgument ....................................................................................  0
I. Congressional Intent as to ADEA Actions Does 

Not Require Jury Trial ....................................  6

II. ADEA Rights and Remedies Are Beyond the 
Seventh Amendment Ambit .................................  10
A. The Test of History ......................................  12
B. Judicial Precedent Mandates Non-jury Trial 13

1. Title VII Cases .......................................   14
2. NLRA Cases . ..............................................  17
3. FLSA Cases ...............................................  19
4. Section 1983 Cases ..................................  24

C. This Case Is Not Controlled by the Court’s
Holding in Curtis v. Loether ...................... 26

Conclusion ....................................................      28

CITATIONS
Cases :
Agwilines v. NLRB, 87 F. 2d 146 (5th Cir. 1936).... 25
Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975)

11,15,16,17
Associated Press v. NLRB, 301 U. S. 103 (1937) . . . .  18
Bank of Hamilton v. Dudley’s Lessee, 27 U. S. 492 

(1829) ....................................................................... 10

IN D E X
Page

27



Beacon Theatres v. Westover, 359 U.S. 500 (1959)... 21
Bertrand v. Orkin Exterminating Co., Inc., 419 F.

Supp. 1123 (N.D. 111. 1976) ..................................  6
Brennan v. Ace Hardware Corp., 495 F. 2d 368 (8th

Cir. 1974) .............................................................. 22
B rennan v. International Harvester Co., 7 Empl.

Prac. Dee, U 9171 (N.D. 111. 1974) ........................ 4
Chilton v. National Cash Register Co., 370 F. Supp.

660 (S.D. Ohio 1974) .............................................. 6
Cleverly v. Western Electric Co., 69 FRD 348, 13

FEP Cases 1443 (W.D. Mo. 1975) .. .....................  6
Cox v. Northern Virginia Transp. Commission, 551 F.

2d 555 (4th Cir. 1976) ...................................... .. 25
Curry v. Continental Airlines, 513 F. 2d 692 (9th Cir.

1975) ....................................................................... 8
Curtis v. Loether, 415 U. S. 189 (1974) .........  5,10,11,12,

14,19, 26, 27, 28
Dairy Queen, Inc. v. Wood, 369 U. S. 469 (1962) . . . .  21
Fleitmann v. Welshach Street Lighting Co., 240 U. S.

27 (1916) ............................................................... 27
Franks v. Bowman Transportation Co., 424 U. S. 747

(1976) ..................................................................... 17
Hannon v. Continental National Bank, 427 F. Supp.

215 (D. Colo. 1977) .......................    4
Harkless v. Sweeny Independent School District, 427 

F. 2d 319 (5th Cir. 1970), cert, denied, 400 U. S.

Hays v. Republic Steel Corp.', 531 F. 2d 1307 ’(5th Cir. ’
1976) ....................................................................... 23

Hodqson v. First Federal Savings <£ Loan Assn., 455
F. 2d 818 (5th Cir. 1972) ......................................  8

Johnson v. Georgia Highway Express, Inc., 417 F. 2d
1122 (5th Cir. 1969) . .".......................................... 14

Looney v. Commercial Union Assurance Cos., 428 F.
Supp. 533 (E.D. Mich. 1977) ............................... 4

McFerren v. County Board of Education, 455 F. 2d
199 (6th Cir. 1972) ...............................................  14

Mitchell v. De Mario Jewelry, Inc., 361 U. S. 288
(1960)   19,20

M or clock v. NCR Corp., 546 F. 2d 682 (6th Cir. 1976)
4,10, 23

ii Citations Continued
Page

28



Citations Continued m 
Page

Moses v. Falstaff Brewing Corp., 525 F. 2d 92 (8th
Cir. 1975) ...................... .............................................  8

Murphy v. American Motors Sales Corp., 410 F. Supp.
1403 (N.D. Ga. 1976) ............................................ 6

NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1
(1936)   18,25

NLRB v. Mackay Radio and Tel. Co., 304 U. S. 333
(1938) .....................................................................   18

Paradise Valley Investigation and Patrol Services,
Inc. v. Dunlop, 521 F. 2d 1342 (9th Cir. 1975 ) . . . .  21

Paul v. Davis, 424 U. S. 693 (1976) ..............................  25
Pernell v. Southall Realty, 416 U. S. 363 (1974) . .8,10,11 
Polstorff v. Fletcher, 14 FEP Cases 1638 (N.D. Ala.

1977)   4
Powell v. Washington Post Co., 267 F. 2d 651 (D.C.

Cir. 1959) .................................................................... 21
Richard, v. Marriott Corp., 549 F. 2d 303 (4th Cir.

1977) .............................................   23
Roherg v. Phipps, 156 F. 2d 958 (2nd Cir. 1946)........  21
Robinson v. Lorillard Corp., 444 F. 2d 791 (4th Cir. 

1971), cert, dismissed under Rule 60, 404 U.S.
1006 (1971) .................................................................. 28

Rogers v. Exxon Research and Engineering Co., 550
F. 2d 834 (3rd Cir. 1977) ...................................... 6, 27

Ross v. Bernhard, 396 U. S. 531 (1970) ................... 6,12,13
Smith v. Hampton Training School for Nurses, 360

F. 2d 577 (4th Cir. 1966) ...................................... 14, 25
Sullivan v. Wirtz, 359 F. 2d 426 (5th Cir. 1966), cert.

denied 385 U. S. 852 (1966) .................................. 22
Usery v. Allegheny County Institution Dist., 544 F.

2d 148 (3rd Cir. 1976) .............................................. 22
Wilson v. Sealtest Foods Div. of Kraftco Corp., 501

F. 2d 84 (5th Cir. 1974) .......................................... 6
Wirtz v. Jones, 340 F. 2d 901 (5th Cir. 1965) ............  21
Wirtz v. Turner, 330 F. 2d 11 (7th Cir. 1964) .............. 22

Constitution, Statutes, and R ules

Constitution of the U nited States:
Seventh Amendment .................................................. 2

29



iv Citations Continued
Page

Statutes:
Age Discrimination in Employment Act of 1967,

29 TJ.S.C. §  ̂621, et seq., 81 Stat. 602 ----- 2, 6, 8,
^  21, 22, 24

Fair Labor Standards Act of 1938, as Amended,
29 U.S.C. ‘§§201, et seq., 52 Stat. 1060......... 2,19,

V 20,21,22,23
Portal-to-Portal Act of 1947, 29 U.S.C. § 260. . . .  23
Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e, et seq....................................2, 8, 9
Title VIII of the Civil Rights Act of 1968, 42

U.S.C. § 3612 ....................................................  26
7 U.S.C. § 135g .........................................................  9
28 U.S.C. §1254(1) .................................................. 2
28 U.S.C. § 1292(b) ..................................................  4
28 U.S.C. § 2402 .....................................................  9
28 U.S.C. § 2713 .....................................................  9
42 U.S.C. § 1983 (1970) ......................................... 24> 25
46 U.S.C. § 688 ......................................................  9

M iscellaneous :
Age Discrimination in Employment: Hearings on 

Age Discrimination Bills Before the Gen. 
Subcomm. on Labor of the House Comm, on 
Educ. and Labor, 90th Cong., 1st Sess. (1967) 7

First Annual Report, Equal Employment Oppor­
tunity Commission to Congress ......................  7

Hearings on Miscellaneous Proposals Regarding 
Civil Rights Before Subcomm. No. 5 of the 
House Comm, on the Judiciary, 89th Cong.,
2d Sess. ser 16 (1966) ...................................... 9

H. R. Rep. No. 805, 1967, U. S. Code Cong, and
Admin. News ......................................................  49

113 Cong. Rec. 31254 (1967) (remarks of Sen. 
Javits, co-sponsor of the Senate version of
the bill) ................................................................ 4

113 Cong. Rec. 31255 (1967) ....................................  £
Second Annual Report, Equal Employment Op­

portunity Commission to Congress ..................  i

30



IN THE
gutprmr Court o! tlir $mtr& i ’tatrs

Octobeb Term, 1977

No. 76-1346

L orillard, A Division of Loew’s Theatres, Inc.,
Petitioner,

v.
Prances P. P ons, Respondent.

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

BRIEF FOR PETITIONER, LORILLARD,
A DIVISION OF LOEW'S THEATRES, INC.

OPINIONS BELOW

The opinion of the Court of Appeals (Pet. for Cert., 
pp. 2a-7a) is reported at 549 F. 2d 950. The opinion of 
the District Court for the Middle District of North 
Carolina (Pet. for Cert., pp. 7a-12a) is unofficially re­
ported at 69 F.R.D. 576, 13 PE P Cases 444.

31



2

JURISDICTION

The judgment of the Court of Appeals was entered 
on 2 February 1977, vacating the judgment of the Dis­
trict Court and remanding same for further proceed­
ings (Pet. for Cert., p. la ). Lorillard, a division of 
Loew’s Theatres, Inc. ( “ Lorillard” ), defendant in the 
District Court and respondent in the Court of Appeals, 
filed a Petition for a W rit of Certiorari on 31 March 
3977. On 27 June 1977, the Court granted the Petition 
for Certiorari. The jurisdiction of this Court rests 
upon 28 U.S.C, §1254(1).

CONSTITUTIONAL PROVISION AND 
STATUTES INVOLVED

The Seventh Amendment to the Constitution of the 
United States provides:

“ In Suits at common law, where the value in 
controversy shall exceed twenty dollars, the right 
of trial bv jury shall be preserved, and no fact 
tried by a jury, shall be otherwise reexamined in 
any Court of the United States, than according to 
the rules of the common law.”

The relevant statutory provisions are §§4 and 7 of 
the Age Discrimination in Employment Act of 1967 
( “ A D E A ” ) (81 Stat. 602, 29 U.S.C. §§621, et seq.) 
and are set forth in the Appendix to this Brief, infra, 
pp. la-3a; Fair Labor Standards Act of 1938, as 
amended ( “ F L S A ” ), §§ 11(b), 15, 16 and 17 (App., 
infra, pp. 4a-5a) ; Title V II  of the Civil Rights Act 
of 1964 ( “ Title V I I ” ), §§703-706 (App., infra, pp. 
6a-8a).

32



3

QUESTION PRESENTED

Whether the Seventh Amendment, or the ADEA, re­
quires a jury trial upon demand of one of the parties 
in an action for injunctive relief and back wages under 
that Act.

STATEMENT

In September 1975, a complaint was filed against pe­
titioner Lorillard in the United States District Court 
for the Middle District of North Carolina, in which it 
was alleged that respondent, a former employee of 
Lorillard, was terminated by her employer when she 
was forty-eight years of age and holding the position 
of financial services coordinator, as a part of its policy 
to discharge older employees and to retain young peo­
ple as employees wherever possible (App. 3-4). In her 
complaint, respondent sought injunctive reinstatement 
as an employee, and thereafter not to discriminate 
against her because of her age, monetary damages con­
sisting of lost wages from date of discharge to date of 
judgment, together with an equal amount of liquidated 
damages, costs and attorneys’ fees (App. 4).

Respondent’s complaint was accompanied by a 
timely written demand for trial by jury on all issues 
of fact in the action (App. 5). On Lorillard’s motion 
to strike respondent’s jury trial demand, the District 
Court ordered that respondent’s demand for a jury 
trial be stricken and that the action be placed on the 
non-jury calender (App. 10). The order was accom­
panied by a Memorandum Opinion (Pet. for Cert., pp. 
7a-12a). In its opinion of January 21, 1976, the Dis­
trict Court held that respondent’s Seventh Amendment 
right to jury trial turns upon the lost wages issue,

33



4

noting that she “ makes no argument that the other 
issues1 will support trial by jury, and there is no au­
thority to support such an argument.”  The District 
Court considered that actions for lost wages under the 
ADEA are logically analogous to actions under Title 
V II  of the Civil Rights Act of 1964, the employment 
discrimination provisions of the Act, and observed that 
the Courts of Appeals for the Fourth, Fifth, Sixth and 
Ninth Circuits have found an award of back pay under 
Title V II  to be equitable. Pons v. Lorillard, 69 F.R.D. 
576; Pet. for Cert., pp. 7a-12a.1 2

An interelocutory appeal of the District Court order 
to the Court of Appeals was allowed. 28 U.S.C. 
§ 1292(b), FR A P 5.

While the case was pending in the Court of Appeals, 
and prior to oral argument, respondent filed a motion 
in that court for leave to amend her complaint upon 
remand to the District Court, by adding a new para­
graph alleging that “ by discriminating against plain­
tiff, defendant acted purposefully and intentionally, 
willfully, wantonly, oppressively and with a reckless

1 Referring to plaintiff’s injunctive reinstatement, liquidated 
damages, attorneys’ fees and costs. The District Court noted that 
“ in the hearing on the defendant’s Motion to strike the jury de­
mand, plaintiff candidly conceded that the liquidated damages 
issue would not be triable to a ju ry .”  Pet. for Cert., pp. 7a-8a, n. 2. 
See also P ons  v. Lorillard , 549 F.2d 950, 951, n. 3.

2 Other cases holding that parties to an A D E A  action are not 
entitled to a jury trial are M orelock  v. N C R  C orp., 546 F.2d 682 
(6th Cir. 1976), Pet. for Cert., pp. 12a-19a; L oon ey  v. Com m ercial 
Union A ssurance Cos., 428 F. Supp. 533 (E .D . Mich. 1977) ; 
H annon  v. C ontinental N ational Bank, 427 F. Supp. 215 (D . Colo. 
1977); P olstorff v. F letch er , 14 F E P  Cases 1638 (N.D. Ala. 1977) ; 
B rennan  v. In ternational H a rvester  Co., 7 Empl. Prac. Dec. 
TJ 9171 (N.D. 111. 1974).

34



5

disregard of plaintiff’s rights;”  and that “ in addition 
to loss of wages, plaintiff has suffered depression and 
anxiety, and humiliation and embarrassment proxi- 
mately and directly as a result of defendant’s wrongful 
conduct;”  and praying for relief and that the Court 
“ award plaintiff monetary damages consisting of lost 
wages and all of her other actual damages, statutory 
liquidated damages, and common law punitive dam­
ages”  (App. 11-12). Lorillard responded by opposing 
this motion and took the position that any motion to 
amend the complaint should be filed with the District 
Court upon remand, and was not properly presented 
to the Court of Appeals, and that the motion failed to 
adequately state the grounds on which it was based 
(App. 13-18).

The Court of Appeals vacated the District Court’s 
order, holding that the jury demand should not have 
been denied, and remanding the claim for back pay 
for trial by a jury; it'also remanded respondent’s mo­
tion to amend her complaint to include a claim for 
punitive damages for presentation to the District 
Court (Pet. for Cert., p. 6a, n. 7).

The Court of Appeals vacated the order of the Dis­
trict Court and remanded the claim for back pay for 
trial by a jury in an analysis as follows: First, Con­
gress intended by the inclusion of the phrase ‘ ‘ legal . . . 
relief”  in Sections 7(b) and 7(c) of the ADEA (App., 
infra, 2a-3a) to empower a federal court to grant liti­
gants the right to a jury trial. Second, the enforcement 
provisions of the ADEA—fair age employment—are 
different from those of Title Y II—fair employment—- 
but are not different from the enforcement clauses of 
Title V III— fair housing—as construed in Curtis v. 
Loether, 415 U. S. 189 (1974). Third, the terms of the

35



6

ADEA command a jury trial in claims for lost wages 
because its enforcement section incorporates by refer­
ence the enforcement remedies of § 216(b) of the 
FLSA, and same uniformly are accorded a jury trial. 
Fourth, an ADEA claim for lost wages meets the three­
pronged test enunciated by this Court in Ross v. Bern- 
hard, 396 U. S. 531, 538 (1970), concluding that ADEA 
claims for lost wages are analogous to the common law 
action for breach of contract by wrongful discharge or 
by an action in tort. Pons v. Lorillard, 549 F. 2d 950 
(1977), Pet. for Cert., pp. 2a-7a.3

ARGUMENT

I. Congressional Inienl as lo ADEA Actions Does Not Require 
Jury Trial

Congress passed the ADEA to ensure that hiring or 
termination decisions are based on obvious evaluations 
of individuals’ potential for job performance, rather 
than on misconceptions about the effects of age on 
ability. Its statutory purpose is to promote “ employ­
ment of older persons based on their ability rather than 
age; to prohibit arbitrary discrimination in employ­
ment; to help employers and workers find ways of 
meeting problems arising from the impact of age on 
employment.”  29 TJ.S.C. § 621(b) (1970).

3 Other eases holding that parties to an A D E A  action are en­
titled to a ju re  trial a re : R ogers  v. E x x o n  R esearch  and E n gin eer­
ing Co., 550 F.2d 834 (3rd Cir. 1977) ; W ilson  v. Sealtest Foods  
D iv. o f  K r a ftco  C orp., 501 F.2d 84, 86, n. 4 (5th Cir. 1974) ; B er ­
trand  v. O rkin  E xterm inatin g  Co., Inc., 419 F. Supp. 1123 (N.D. 
111. 1976); Chilton  v. N ational Cash R egister  Co., 370 F. Supp. 
660 (S.D. Ohio 1974) ; M urph y  v. A m erica n  M otors Sales Corp., 
410 F. Supp. 1403 (N.D. Ga. 1976 ); C leverly  v. W estern  E lectric  
Co., 69 F E D  348, 13 F E P  Cases 1443 (W .D . Mo. 1975).

36



7

As the ADEA was enacted in 1967, Congress could 
have amended Title V II  of the Civil Rights Act of 
1964, which proscribes employment discrimination on 
the basis o f race, sex, religion or national origin to in­
clude age as a protected classification since the prohi­
bitions in both Acts are substantially the same. The 
ADEA was established as an independent statutory 
scheme incorporating the enforcement procedures of 
the Fair Labor Standards Act. One of the considera­
tions for this choice was administrative convenience, 
namely, the feeling in Congress that the Equal Em­
ployment Opportunity Commission, which had been 
created to process complaints from aggrieved parties 
under Title V II, was overburdened and that age dis­
crimination complaints could be handled more effi­
ciently by the Wage and Hour Division of the Depart­
ment of Labor.4

The focus of the ADEA, like Title V II, is to insure 
the employment of individuals without regard to ar­
bitrary, and therefore, forbidden criteria.

The operative enforcement provisions of the two 
Acts are quite similar. The ADEA gives “ the Court 
. . . jurisdiction to grant such legal or equitable relief

4 See 113 Cong. Rec. 31254 (1967) (remarks of Sen. Javits, co­
sponsor o f the Senate version of the b i l l ) ; A g e  D iscrim ination  in  
E m p loym en t: H earings on  A g e  D iscrim ination  B ills B efo re  the 
Gen. Subcom m . on L abor o f the H ouse Comm, on E duc. and 
Labor, 90th Cong., 1st Sess. 141-43, 412-14 (1967). See also, First 
Annual Report, Equal Employment Opportunity Commission to 
Congress, in accordance with § 705(d ) of the Civil .Rights A ct of 
1964, for the fiscal year ended June 30, 1966, noting that “ by 
June, 1966, the Commission had been deluged with 8,854 indivi­
dual complaints”  (p. 5 ). In the Second Annual Report, for the 
fiscal year ended June 30, 1967, there were a total of 12,927 
charges awaiting disposition (p. 4 ).

37



as may be appropriate,”  while Title Y II  provides that 
“ the court . . . may order such affirmative action as 
may be appropriate.”  In providing examples of ap­
propriate relief, the statutes give the same remedies— 
employment or hiring, reinstatement, and back pay; 
and each statute specifically provides that relief is not 
restricted to the enumerated examples.

The substantive and procedural provisions of the 
ADEA and Title Y II  are similar. The Secretary of 
Labor is empowered to bring an action on behalf of an 
aggrieved party under the ADEA, 29 U.S.C. § 626(b)
(1970), while the Equal Employment Opportunity 
Commission is empowered to bring an action on behalf 
of an aggrieved party under Title Y II, 42 U.S.C. 
§2000e-5 ( f ) (2 ) .

The ADEA, like Title Y II  with respect to all traits 
but race, provides that it shall not be unlawful for an 
employer to base his decisions on age “ where age is 
a bona fide occupational qualification reasonably neces­
sary to the normal operation of the particular busi­
ness.”  29 U.S.C. § 6 2 3 (f)(1 ); 42 U.S.C. §2000e-3(b).

ADEA courts have recognized the similarity between 
the two Acts in interpreting the former. Curry v. Con­
tinental Airlines, 513 F. 2d 691 (9th Cir. 1975); Moses 
v. Falstaff Brewing Corp., 525 F. 2d 92 (8th Cir. 1975); 
Hodgson v. First Federal Savings & Loan Assn., 455 
F. 2d 818, 822 (5th Cir. 1972).

The threshold determination should be made as to 
whether the ADEA provided, or whether Congress in­
tended that it provide, for a jury trial. Only if the Act 
does not so provide does the Court reach the question 
of the Seventh Amendment’s applicability. Pernell v. 
Southall Realty, 416 U. S. 363, 365 (1974).

8

38



9

The ADEA contains no express or implied provision 
concerning the right to a jury trial for alleged viola­
tions of the Act.5

The A ct’s meager legislative history does not reveal 
that Congress contemplated or intended that issues be 
tried to juries. While the right to jury trial was men­
tioned occasionally and some members of Congress as­
sumed that juries would hear ADEA cases,6 none of 
these references clearly indicate congressional intent 
on the subject.

Title V II  of the Civil Rights Act of 1964 had been 
in effect for three years at the time of the enactment 
of the ADEA, and congressional concern over jury 
trial in the civil rights area was manifest prior to the 
adoption of the ADEA. See, e.g., Hearings on Miscel­
laneous Proposals Regarding Civil Rights B efore Stib- 
comm. No. 5 of the House Comm, on the Judiciary, 
89th Cong., 2d Sess., ser. 16, at 1183 (1966).

Title V I I ’s express preservation of the right to jury 
trial in criminal contempt cases, 42 U.S.C. § 2000h 
(1970), suggests that Congress did not provide jury 
trials for civil violations of Title V II  or for its pro­
genitor, ADEA actions. The ADEA draws the bulk of 
its statutory heritage from Title V II. The Court in

5 For federal statutes which specifically confer the right of jury 
trial, see e.g., 28 U.S.C. § 2402 (civil actions for internal revenue 
tax refunds) ; 28 U.S.C. § 2713 (actions of attachment in postal 
suits involving debts o f defaulting postmasters, contractors or 
other post office employees) ; 46 U.S.C. § 688 (actions by seamen for 
in jury or death under Jones A ct) ; 7 U.S.C. § 135g (actions for 
violations of labeling and purity of insecticides).

6 In a colloquy on the floor, Senator Javits said that in an age 
discrimination suit “ a jury  will answer Yes or N o,”  113 Cong. 
Ree. 31255 (1967).

39



10

Morelock v. NCR Corp., 546 F. 2d 682 (6th Cir. 1976), 
characterized the ADEA as “ an offspring of the Civil 
Rights Act of 1964”  and noted that the similarities 
between the two Acts were “ hardly accidental.”  Id., 
at 686. The legislative history of the ADEA and Title 
V II  demonstrates that although the express enforce­
ment provisions of these Acts differ, the provisions of 
each Act originated in the Rational Labor Relations 
Act and were respectively modified in order to permit 
individuals to seek relief through civil litigation. See 
H. R. Rep. No. 805, 1967 U. S. Code Cong, and Admin. 
News, pp. 2213, 2218.

II. ADEA Rights and Remedies Are Beyond the Seventh 
Amendment Ambit

As Congress has not expressly provided a jury trial 
under the ADEA, the matter is governed by the Sev­
enth Amendment. The Amendment’s deceptively sim­
ple language belies the problems involved in its appli­
cation to the circumstances of a particular case.

The extent of the problems presented by the Seventh 
Amendment’s guarantee since its adoption in 1791 is 
demonstrated by this Court’s occasion to interpret the 
Amendment in 94 opinions, from Bank of Hamilton v. 
Dudley’s Lessee, 27 U. S. 492 (1829), where the basic 
principle was first articulated, to Pernell v. Southall 
Realty, 416 II. S. 363 (1974). The problem of ascer­
taining whether a particular action is legal or equitable 
continues to perplex the courts; only the tests have 
changed.

The basic principle to be applied was set forth by 
Mr. Justice Marshall in Curtis v. Loether, 415 U. S. 
189, 194-195 (1974) :

40



11

“ The Seventh Amendment does apply to actions 
enforcing statutory rights, and requires a jury 
trial upon demand, i f  the statute creates legal 
rights and remedies, enforceable in an action for  
damages in the ordinary courts of law. . . . But 
when Congress provides for enforcement of statu­
tory rights in an ordinary civil action in the dis­
trict courts where there is obviously no functional 
justification for denying the jury trial right, a 
jury trial must be available i f  the action involves 
rights and remedies o f the sort typically enforced  
in an action at law.”  Id., at 194-195 (footnote 
omitted) (emphasis added).

This principle wTas also restated in Pernell v. Southall 
Realty, 416 U. S. 363, 374-376 (1974) ;

“ Whether or not a close equivalent to Section 
16-1501 existed in England in 1791 is irrelevant 
for Seventh Amendment purposes, for that 
Amendment requires trial by jury in actions un­
heard of at common law, provided that the action 
involves rights and remedies of the sort tradition­
ally enforced in an action at law, rather than in an 
action at equity or admiralty.”  416 IT. S. at 375 
(emphasis added).

The entire area of constitutional right to jury trial 
in employment discrimination actions is confusing and 
confused. This Court has not previously had occasion 
to determine whether the rights and remedies created 
by acts relating to discrimination in employment are of 
the sort traditionally involved in an action at equity 
or in law. As discussed later in this Brief, reference 
is made to the problem in Curtis v. Loether, supra, but 
it was stated that “ we of course express no view on the 
jury trial issue”  in the Title V II  context, and also to 
Mr. Justice Rehnquist’s concurring opinion in Albe­
marle Paper Co. v. Moody, 422 IT. S. 405, at 441 (1974).

41



12

A. The test of history

Because the Seventh Amendment seeks to preserve 
an existing standard for determining the scope of the 
right to jury trial rather than to establish a new stand­
ard, this Court has suggested in Ross v. Bernhard that 
an historical approach to the question is one element 
of a three-pronged inquiry:

“ [T]he ‘ legal nature’ of an issue is determined 
by considering, first, the pre-merger custom with 
reference to such questions; second, the remedy 
sought; and, third, the practical abilities and limi­
tations of juries.”  396 U.S. at 538, n. 10 (1970).

Stated differently r
‘ ‘ Where a new cause of action is created by Con­

gress, and nothing is said about how it is to be 
tried, the jury trial issue is determined by fitting 
the cause into its nearest historical analogy.”  396 
U. S. at 543, n. 1 (Stewart, J., dissenting).

The Court of Appeals in the case under review relied 
upon the rationale of Ross, stating that “ the ultimate 
analysis to determine whether a suit is one ‘ at common 
law’ within the Amendment seems to be the three­
pronged classical test”  and concluding that the present 
action met such a test (Pet. for Cert., pp. 5a-6a). The 
Ross test was cited in Curtis, 415 U. S. at 194, 195.

The nature of the “ remedy”  element in the Ross test 
has reference to history. Traditionally, actions for 
money damages for tort or breach of contract were 
legal, while actions for injunction or for specific per­
formance were invariably equitable. This difference in 
the relief granted remains the most obvious ground 
for differentiating law and equity. Debatable questions 
arise where, as in the case under review, money is re-

42



13

quested by respondent, and it is the kind of money 
award which could have been granted by equity. Al­
though Ross involved a situation in which a statutorily 
created right of action was being asserted, it did not 
deal with the process of finding a legal or equitable 
characterization for the statutory right.

As pointed out by Mr. Justice Stewart in his dissent­
ing opinion in Ross (with whom Mr. Chief Justice 
Berger and Mr. Justice Harlan joined), “  [t]he fact is, 
of course, that there are, for the most part, no such 
things as inherently ‘ legal issues’ or inherently ‘ equit­
able issues.’ There are only factual issues, and, ‘ like 
chameleons [they] take their color from surrounding 
circumstances.’ ”  396 IT. S. at 550 (footnote omitted).

Because the Seventh Amendment is preservative in 
character and neither enlarges nor restricts the right 
of jury trial as it was known to the English common 
law at the time the Amendment was adopted in 1791, 
the historical test has proven to be an unsatisfactory 
means of resolving the jury trial issue. The Ross test 
appears to offer no improvements over the strict his­
torical test, merely breaking the historical test into 
components without eliminating any of its unsatis­
factory attributes.

B. Judicial precedent mandates non-jury trial

Even if it be determined that respondent’s action 
under ADEA to redress her claimed employment dis­
crimination is an action presenting a ‘ ‘ right”  of the 
sort traditionally enforced in an action at law does not, 
in itself, mandate a right to jury trial. The Seventh 
Amendment does not apply unless the action involves 
rights and remedies of the requisite nature. Curtis v. 
Loether and Pernell v. Southall Realty, ante, p. 11.

43



14

Accordingly, an analysis of the right to jury trial 
under ADEA should be made in terms of the existing 
case law—however unsatisfactory the basis of this 
case law may be conceptually. An examination of the 
judicial handling of the jury trial issue under similar 
remedial statutes which, like ADEA, involve both in­
junctive relief and monetary awards reveals that the 
courts have consistently denied the right to jury trial 
in such actions. Almost without exception, courts have 
denied the right to jury trial in employment discrimi­
nation cases when a plaintiff seeks injunctive relief 
and back pay as in the present action. This Court noted 
in Curtis v. Loether, 415 IT. S. at 196-7, that in Title 
V II  actions, “ the courts of appeals have held that jury 
trial is not required in an action for reinstatement and 
back pay,”  citing Johnson v. Georgia Highway E x­
press, Inc., 417 F. 2d 1122 (5th Cir. 1969); Robinson 
v. Lorillard Corp., 444 F. 2d 791 (4th Cir. 1971), cei’t. 
dismissed under Rule 60, 404 IT. S. 1006 (1971) ; Mc- 
Ferren  v. Comity Board o f Education, 455 F. 2d 199 
(6th Cir. 1972); Harkless v. Sweeney Independent 
School District, 427 F. 2d 319 (5th Cir. 1970), cert, 
denied, 400 U. S. 991 (1971); Smith v. Hampton Train­
ing School for  Nurses, 360 F. 2d 577 (4th Cir. 1966) 
(en banc).

1. Title V I I  Cases

The Court in Curtis noted that “ in Title V II  cases 
the courts of appeals have characterized backpay as an 
integral part of an equitable remedy, a form of resti­
tution;”  and that those courts also “ have relied on the 
fact that the decisions whether to award backpay is 
committed to the discretion of the trial judge;”  and 
finally, that in a sense the award in those cases could

44



15

be viewed as requiring the defendant to disgorge funds 
wrongfully withheld from the plaintiff. 415 U. S. at 
197.

Subsequent to Curtis, this Court has had occasion to 
examine more closely the nature of a back-pay award 
in Title V II  actions by private individuals. In Albe­
marle Paper Co. v. Moody, 422 IT. S. 405 (1975), one 
of the issues involved was what standards should a 
federal district court follow in deciding whether to 
award or deny back pay to employees who have lost the 
opportunity to earn wages because an employer has 
engaged in an unlawful discriminatory employment 
practice. The Court stated:

“ . . . It is true that backpay is not an automatic 
or mandatory remedy; like all other remedies un­
der the Act, it is one which the courts ‘may’ invoke. 
The scheme implicitly recognizes that there may 
be cases calling for one remedy but not another, 
and—owing to the structure of the federal judi­
ciary—these choices are of course left in the first 
instance to the district courts. . . . ”  422 IT. S. at 
415-416 (footnote omitted).

It was noted that the district court’s discretion in Title 
V II cases ‘ ‘ is equitable in nature, see Curtis v. Loether, 
415 IT. S. 189, 197”  and that “ Congress invokes the 
Chancellor’s conscience to further transcendant legis­
lative purposes”  in employment discrimination litiga­
tion. This Court in Albemarle employed language that 
is equally apposite to actions brought by private indi­
viduals under the ADEA for injuries occasioned by 
age discrimination:

“ It is also the purpose of Title V II  to make 
persons whole for injuries suffered on account of 
unlawful employment discrimination. This is

45



16

shown by the very fact that Congress took care to 
arm the courts with full equitable powers. For it 
is the historic purpose of equity to ‘ secur[e] com­
plete justice,’ Brown v. Swann, 10 Pet. 497, 503; 
see also P orter v. W arner Holding Co., 328 U. S. 
395, 397-398. ‘ [W]here federally protected rights 
have been invaded, it has been the rule from the 
beginning that courts will be alert to adjust their 
remedies so as to grant the necessary relief.’ Bell 
v. Hood, 327 IT. S. 678, 684. Title V II  deals with 
legal injuries of an economic character occasioned 
by racial or other anti-minority discrimination. 
The terms ‘ complete justice’ and ‘necessary re­
lie f’ have acquired a clear meaning in such circum­
stances. Where racial discrimination is concerned, 
‘ the [district] court 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 discrimination in the fu­
ture.’ Louisiana v. United States, 380 U. S. 145, 
154. And where a legal injury is of an economic 
character,

‘ [t]he general rule is, that wThen a wrong has 
been done, and the law gives a remedy, the 
compensation shall be equal to the injury. The 
latter is the standard by which the former is 
to be measured. The injured party is to be 
placed as near as may be, in the situation he 
would have occupied if the wrong had not 
been committed.’ W icker v. Hoppock, 6 Wall. 
94, at 99.”  422 U. S. at 416-419.

And Mr. Justice Rehnquist’s words concerning the dis­
cretionary nature of an employment awrard is instruc­
tive :

“ To the extent, then, that the District Court re­
tains substantial discretion as to whether or not 
to award backpay not withstanding a finding of 
unlawful discrimination, the nature of the juris-

46



17

diction which the Court exercises is equitable, and 
under our cases neither party may demand a jury 
trial. To the extent that discretion is replaced by 
awards which follow as a matter of course from a 
finding of wrongdoing, the action of the Court in 
making such awards could not be fairly character­
ized as equitable in character, and would quite ar­
guably be subject to the provisions of the Seventh 
Amendment.”  422 U. S. at 443.

In Franks v. Bowman Transportation Co., 424 U. S. 
747 (1976), involving the question of whether identifi­
able applicants who were denied employment because 
of race in violation of Title V II  may be awarded sen­
iority status retroactive to the dates of their employ­
ment applications, it is stated, with respect to Title 
V II, that “ federal courts are empowered to fashion 
such relief as the particular circumstances of a case 
may require to effect restitution, making whole insofar 
as possible the victims of racial discrimination in 
hiring.”  424 U. S. at 764 (emphasis added).

The Court also stated:
“ We are not to be understood as holding that an 

award of seniority status is requisite in all circum­
stances. The fashioning of appropriate remedies 
invokes the sound equitable discretion of the dis­
trict courts.”  424 U. S. at 770.7

2. N LRA Cases

The question whether the trial of a former employee, 
who claims to have been discriminatorily terminated, 
without a jury violates the Seventh Amendment arose

7 “ When a district court orders an award o f back pay or retro­
active seniority, it exercises equitable powers expressly conferred 
upon it by Congress.”  424 U.S. at 785 (Powell, J., dissenting).

47



18

in this Court in the context of a proceeding for rein­
statement and back pay under the National Labor Re­
lations Act. N LR B  v. Jones & Laughlin Steel Corp., 
301 U. S. 1 (1936). There, an order of the NLRB 
•which, in addition to directing reinstatement of unlaw­
fully discharged employees, also directed back pay to 
these employees, was held not to violate the Seventh 
Amendment. The decision was rested on the ground 
that the case was not a suit at common law or in the 
nature of such a suit, and that the proceeding was one 
unknown to the common law. Mr. Chief Justice 
Hughes, writing for a majority composed of Justices 
Brandeis, Stone, Roberts, and Cardozo, rejected the 
employer’s argument that the backpay “ requirement 
is equivalent to a money judgment and hence contra­
venes the Seventh Amendment with respect to trial by 
jury,”  stating:

“ . . . Thus [the Seventh Amendment] has no 
application to cases where recovery of money dam­
ages is an incident to equitable relief even though 
damages might have been recovered in an action 
at law. . . .  It does not apply where the proceeding 
is not in the nature of a suit at common law. . . .

“ The instant case is not a suit at common law 
or in the nature of such a suit. The proceeding is 
one unknown to the common law. It is a statutory 
proceeding. Reinstatement of the employee and 
payment for time lost are requirements imposed 
for violation of the statute and are remedies ap­
propriate to its enforcement. The contention un­
der the Seventh Amendment is without merit.”

The holdings of the Court in Jones & Laughlin were 
followed in Associated Press v. N LRB , 301 II. S. 103, 
133 (1937), and N LRB  v. Mackay Radio and Tel. Co., 
304 U. S. 333, 351 (1938).

48



19

The character of Jones & Laughlin was explained, 
and its rationale was limited, in Curtis v. Loether, 415 
U. S. 189, 194 (1974), where the Court noted that in 
the former case the Seventh Amendment claim was re­
jected on the ground that the case involved a statutory 
proceeding and not a suit at common law or in the 
nature of such a suit; and that the case merely stands 
for the proposition that the Seventh Amendment is 
generally inapplicable in administrative proceedings, 
where jury trials would be incompatible with the whole 
concept of administrative adjudication and would sub­
stantially interfere with the N LR B ’s role in the statu­
tory scheme.

Even though Jones & Laughlin’s ultimate rationale 
was grounded in the fact that an administrative pro­
ceeding was involved, the decision has obvious Seventh 
Amendment wording and overtones which have not 
been overturned or lessened; and this Court has neither 
rejected nor denigrated in any way the reasoning in 
Jones <f Laughlin that the Seventh Amendment “ has 
no application to cases where recovery of money dam­
ages is an incident to equitable relief even though dam­
ages might have been recovered in an action at law.”

3. FLSA  Cases

The Court noted in Curtis, 415 IT. S. at 196, that “ we 
need not, and do not, go so far as to say that any award 
of monetary relief must necessarily be legal relief. See, 
e.g., Mitchell v. De Mario Jewelry, Inc., 361 IT. S. 288 
(1960); P orter v. W arner Holding Co., 328 IT. S. 395 
(1946)”  (footnote omitted).

Mitchell v. De Mario Jewelry involves a suit brought 
by the Secretary of Labor in the District Court to en-

49



20

join violations of § 15(a) (3) of the Fair Labor Stand­
ards Act of 1938, which makes it unlawful for an em­
ployer to discharge or discriminate against an em­
ployee because the employee has instituted a proceed­
ing under the Act. The District Court granted an in­
junction against further discrimination and ordered 
reinstatement of three employees, but declined, with­
out deciding whether it had jurisdiction, to order the 
employer to reimburse the employees for wages lost 
as a consequence of the unlawful discharge.

This Court reversed the judgment below and held, 
in the face of a silent statute, that district courts en­
joyed the “ historic power of equity”  to award reim­
bursement of lost wages even though § 17 of the Act 
as then framed withdrew from the Court jurisdiction, 
in an action to restrain violations of the Act, payment 
to employees of “ unpaid minimum wages or unpaid 
overtime compensation or an additional equal amount 
as liquidated damages in such action.”  The Court con­
cluded :

“  When Congress entrusts to an equity court the 
enforcement of prohibitions contained in a regu­
latory enactment, it must be taken to have acted 
cognizant of the historic power of equity to pro­
vide complete relief in light of the statutory pur­
poses.”  361 U. S. at 291-2.

The Court reasoned that the remedy of ordering re­
imbursement for loss o f wages is not punitive, where 
the measure of reimbursement is compensatory only. 
Id., at 293.

In Mitchell, a Seventh Amendment jury trial right 
was not asserted directly, but the Court relied on 
equity’s historical justifications for asserting its im-

50



21

plied jurisdiction, strongly suggesting that no jury 
trial right would attach. Particularly the ruling in 
Mitchell, falling chronologically between Beacon Thea­
tres v. W estover, 359 U. S. 500 (1959), and Dairy 
Queen, Inc. v. Wood., 369 U. S. 469 (1962), must have 
been cognizant of the jury trial implications of relying 
entirely on an equitable rationale for granting mone­
tary relief.

Suits brought under § 17 of the Fair Labor Stand­
ards Act of 1938, 29 U.S.C. § 217, provide another ex­
ample of a proceeding in which monetary awards com­
bined with injunctive relief are available without a 
right to jury trial. Paradise Valley Investigation and 
Patrol Services, Inc. v. Dunlop, 521 F. 2d 1342 (9th Cir. 
1975); W irtz  v. Jones, 340 F. 2d 901 (5th Cir. 1965).

The Court of Appeals considered that since § 626(b) 
of the ADEA incorporated the provisions of § 216 of 
the FLSA [see App., infra., p. 4a-5a] and that “ it is 
settled that § 216(b) claims are legal in nature and 
uniformly accorded a jury trial”  (Pet. for Cert., p. 
5a), it follows that a private party bringing an action 
under ADEA is similarly entitled to a jury trial. This 
Court has never ruled on the issue of whether a private 
party under an FLSA suit is entitled to a jury trial, 
but assuming arguendo that he is entitled to same, that 
fact is not dispositive of the instant issue involved be­
cause private actions requiring jury trials under the 
FLSA do not, as do ADEA and Title Y II  proceedings, 
involve injunctive relief; only monetary relief is pro­
vided by the FLSA. Individual employees may not seek 
equitable relief in FLSA cases. Powell v. Washington 
Post Co., 267 F. 2d 651 (D.C. Cir. 1959), and Roberg 
v. Phipps, 156 F. 2d 958 (2nd Cir. 1946). It is, there-

51



22

fore, seen that the right to jury trial does not depend 
simply on whether a private individual or a public offi­
cial brings the action under the FLSA but it is a ques­
tion of the type of remedy sought by the action. Ac­
cordingly, while there is no jury trial right when the 
Secretary of Labor seeks an injunction and the pay­
ment of back wages under § 17 of the FLSA, Sullivan 
v. W irtz, 359 F. 2d 426 (5th Cir. 1966), cert denied 385 
U. S. 852 (1966), the courts have also held that there 
is a right to jury trial when the Secretary of Labor 
brings an action under § 16(c) for purely monetary 
relief, W irtz  v. Turner, 330 F. 2d 11 (7th Cir. 1964).

Because the enforcement provisions of the ADEA 
incorporate by reference the provisions of the FLSA 
and utilize the administrative and enforcement ma­
chinery of that Act, it does not follow that the decisions 
dealing with jury rights in private actions under the 
FLSA apply equally to those under the ADEA. ADEA 
is a separate law, enacted at a different time, and aimed 
at a separate problem—discrimination on account of 
age in employment situations. Cf., Usery v. Allegheny 
County Institution Dist., 544 F. 2d 148 (3rd Cir. 1976), 
holding that the Equal Pay Act is separate from the 
FLSA even though it is housed in the latter Act.

Relief under §626 of the ADEA is “ within the 
equitable discretion of the district court,”  Brennan v. 
Ace Hardware Corp., 495 F. 2d 368 (8th Cir. 1974), 
whereas relief under the FLSA is automatic and rep­
resents the difference between the amount of minimum 
wages due under the Act and the amount paid by the 
employer (or the payment of time and a half times 
the regular rate of pay for overtime hours worked and 
not compensated for). This contrast highlights both 
the “ equitable nature”  of private ADEA relief and 
supports the conclusion that actions by individuals

52



23

under ADEA are more closely analogous to actions by 
government officials under PLSA than to private ac­
tions under this statute.

For a complete analysis of the relationship between 
a private action brought under the FLSA and one un­
der the ADEA, reference is made to Morelock v. NCR  
Corp., 546 F. 2d 682 (6th Cir. 1976) (Pet, for Cert., 
pp. 12a-19a).

Both the ADEA and the FLSA provide for “ liqui­
dated damages”  in cases of willful violations of the 
Act (App., infra, pp. 2a-3a). The award of liquidated 
damages, however, is a matter within the discretion 
of the district court by reason of the provisions of § 11 
of the Portal-to-Portal Act of 1947, 29 U.S.C. §260. 
Hays v. Republic Steel Corp., 531 F. 2d 1307 (5th Cir. 
1976), held that the district court in an ADEA action 
by individuals against an employer has discretion, pur­
suant to the provisions of the Portal-to-Portal Act, 
to not award liquidated damages where there is a will­
ful violation of the Act but good faith on the part of 
the employer has been established. Similarly, in Rich­
ard v. Marriott Corp., 549 F. 2d 303 (4th Cir. 1977), an 
action brought by individuals under the Fair Labor 
Standards Act for denial of the federal minimum 
wages, the court held that § 16(b) of the FLSA which 
provides for the payment of unpaid minimum wages 
and “ an additional equal amount as liquidated dam­
ages,”  permits the district court “ in its further dis­
cretion,”  to award a lesser amount of liquidated dam­
ages, or none at all, if  the employer shows to the satis­
faction of the court that the act giving rise to such 
action was in good faith and that he had reasonable 
grounds for belie Ang that his act was not a violation 
of the FLSA.

53



24

4. Section 1983 Cases

It is true, as noted by the Court of Appeals (Pet. for 
Cert., p. 3a) that §4 (b ) and (c) of the ADEA vests 
the district court with jurisdiction to grant “ legal or 
equitable relief.”  The court below concluded that “ the 
inclusion of the phrase ‘ legal . . . relief’ empowers a 
Federal court to grant complainants the Constitutional 
right to a ju ry”  (Pet. for Cert., p. 3a), presumably 
equating this language with vesting the district court 
with the right to grant both legal and equitable reme­
dies. We consider that the Congressional draftsmen 
of the ADEA had no such purpose in mind. The 
phraseology “ legal or equitable relief”  is meant to in­
dicate that an individual plaintiff in an ADEA case 
can, unlike an individual plaintiff in an FLSA case, 
seek legal relief in the form of back pay or injunctive 
relief in the form of reinstatement which would not be 
the situation under an FLSA action.

Analogous is the phraseology of 42 U.8.C. § 1983 
which provides that persons who have been deprived 
of rights, privileges or immunities secured by the Con­
stitution and laws shall be liable to the party injured 
“  in an action at law, suit in equity or other proceeding 
for redress.” 8

The courts in Harkless v. Sweeny Independent 
School D ist., 427 F. 2d 319 (5th Cir. 1970), cert, denied

8 42 U.S.C. '§ 1983 (1970) provides: “ Every person who, under 
color of any statute, ordinance, regulation, custom, or usage, of 
any State or Territory, subjects, or causes to be subjected, any 
citizen of the United States or other persons within the jurisdic­
tion thereof to the deprivation of any rights, privileges, or immuni­
ties secured by the Constitution and laws, shall be liable to the 
party injured in an action at law, suit in equity, or other proper 
proceeding for  redress.

54



25

400 U. S. 991 (1971), and Smith v. Hampton Training 
School fo r  Nurses, 360 F. 2d 577 (4th Cir. 1966) (en 
bane), considered that the equitable relief authorized 
by § 1983 was intended to be comprehensive and held 
that no jury trial rights attach to the back-pay issue. 
In Smith, the court dealt with plaintiff Negro nurses 
who had been discharged for eating in a cafeteria re­
served by the hospital administration exclusively for 
whites. The court, relying only on § 1983, quoted that 
part of it authorizing suits in equity or other proper 
proceedings and held that where, as in Smith, the 
nurses were dismissed for protesting illegal discrimi­
nation, they were entitled to return to their jobs and 
that equity would restore them to their previous posi­
tion by means of a back-pay order. The opinion’s cen­
tral concern was with the suitability of providing that 
relief under the statute. In a footnote disposing of the 
jury-trial issue, the court cited N LRB  v. Jones & 
Laughlin, 301 II. S. 1 (1936) and Agwilines v. N LRB, 
87 F. 2d 146 (5th Cir. 1936), for the proposition that a 
back-pay order forms an integral part of the equitable 
relief of reinstatement and that no jury trial rights 
attached.

See, Cox v. Northern Virginia Transp. Commission, 
551 F. 2d 555 (4th Cir. 1976), an action brought under 
42 U.S.C. § 1983, where it was held that “ ‘ back pay is 
an integral component of the equitable relief to which 
the employee is entitled”  and plaintiff was not per­
mitted to recover either punitive or compensatory 
damages for injury to her reputation. Cf., Paul v. 
Davis, 424 U. S. 693 (1976), an action brought under 
42 U.S.C. §1983, where it was held that defamation 
by a state official is not a federal constitutional or stat­
utory tort.

55



26

C. This case is noi controlled by  ihe Court's holding in 
Curtis v. Loether

Reliance upon the holding of this Court in Curtis v. 
Loether, 415 U. S. 189 (1974), for a jury trial in an 
AREA action is misplaced. An effort to force the facts 
of this case and the provisions of the AREA into the 
mold of Curtis simply will not succeed. There are sig­
nificant differences between the statutory language au­
thorizing remedial relief in Title V III  suits and 
AREA suits.

Title V I I I  authorizes private plaintiffs to bring civil 
actions to redress violations of the fair housing provi­
sions of that Act, and provides that

“ [t]he court may grant as relief, as it deems 
appropriate, any permanent or temporary injunc­
tion, temporary restraining order, or other order, 
and may award to the plaintiff actual damages and 
not more than $1,000 punitive damages, together 
with court costs and reasonable attorney fees. . . . ”  
42 U.S.C. §3612 (emphasis added).

The contrast between the two Acts is striking. Title 
V I II  clearly permits a party to seek legal relief and 
Congress characterized it as such. In contrast, how­
ever, the inference from the wording of AREA is that 
Congress contemplated only equitable relief and hence 
the award of any monetary relief can only be viewed as 
part of that equitable remedy.

The Court stated in Curtis:

“ More important, the relief sought here— actual 
and punitive damages—is the traditional form of 
relief offered in the courts of law.”  415 U. S. at 
196 (footnote omitted).

56



27

Title V III  expressly provides for the recovery of ac­
tual and punitive damages. Actions in equity refuse to 
enforce a penalty and will not award punitive dam­
ages. Fleitmann v. Welsbach Street Lighting Co., 240 
U. S. 27 (1916). Title V I II  actions also authorize the 
recovery of actual damages as measured by a plaintiff’s 
loss. In contrast, an action under ADEA cannot award 
punitive damages, and can only restore the status quo 
or make a restitutionary award. Thus, it was held in 
Rogers v. Exxon Research and Engineering Co., 550 
F. 2d 834 (3rd Cir. 1977), that an action by a former 
employee against his employer to recover for alleged 
age discrimination under the ADEA did not permit re­
covery of damages for pain and suffering or emotional 
and psychic distress, and that the Act provides for only 
the amount of lost earnings.

The Court in Curtis, while expressing no view on the 
jury-trial issue in a Title V II  context, did deem a com­
parison of Title V I II  with Title V II  to be “ instruc­
tive,”  and noticed the sharp contrast between the stat­
utory language in Title V II  under which the courts 
of appeals have characterized back pay “ as an integral 
part of an equitable remedy, a form of restitution”  
with Title V I I I ’s “ simple authorization of an action 
for actual and punitive damages.”  Id., at 197.

Curtis also noted that in Title V II  cases the courts 
“ have relied on the fact that the decision whether to 
award back pay is committed to the discretion of the 
trial judge”  which contracts with Title V III  where 
“ [tjhere is no comparable discretion here: if a plain­
tiff proves unlawful discrimination and actual dam­
ages, he is entitled to judgment for that amount.”  Id., 
at 197.

57



Finally, Curtis notes the distinction that Title V II  
cases can be viewed as requiring the employer to dis­
gorge funds wrongfully withheld from the plaintiff, 
e.g., Robinson v. Lorillard Corp., 444 F. 2d 791 (4th 
Cir. 1971), cert, dismissed under Rule 60, 404 U. S. 
1006 (1971), but in actions under Title V III  there is 
no “ sense in which the award here can be viewed as 
requiring the defendant to disgorge funds wrongfully 
withheld from the plaintiff.”  Id., at 197.

CONCLUSION

The ADEA contains no express or implied provision 
concerning the right to a jury trial for alleged viola­
tions of the Act. The A ct’s meager legislative history 
does not reveal whether Congress contemplated or in­
tended that issues be tried to juries. The action brought 
by respondent in this case involves rights and remedies 
of the sort traditionally enforced in an action at equity, 
rather than one at law, and, therefore, is not within the 
ambit of the Seventh Amendment.

Actions under the ADEA for employment discrimi­
nation on account of age are similar to actions brought 
under Title A7II  of the Civil Rights Act of 1964 for 
alleged discrimination on account of sex, race or na­
tional origin. The courts of appeals have uniformly 
held that a jury trial is not required in an action for 
reinstatement and back pay in Title V II  actions, and 
the same result should follow in ADEA actions.

28

58



29

We urge, therefore, that the judgment of the court 
below be reversed, and that the judgment of the Dis­
trict Court striking respondent’s demand for jury trial 
be stricken and that the action be placed on a non-jury 
calender, be reinstated.

Respectfully submitted,

T h o r n t o n  H .  B r o o k s  
M . D a n i e l  M c G i n n  

P. O. Drawer U 
Greensboro, North Carolina 27402
Attorneys for Lorillard, a Division 
of Loew’s Theatres, Inc.

Of Counsel:
B r o o k s , P ie r c e , M cL e n d o n ,

H u m p h r e y  & L e o n a r d  
P. O. Drawer U
Greensboro, North Carolina 27402 

Dated: September 1977

59





IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 76-1346

LORILLARD, A DIVISION OF LOEW'S THEATRES, 
INC. ,

Petitioner,

v.
FRANCES P. PONS,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR RESPONDENT

Norman B. Smith
Smith, Patterson, Follin,
Curtis & James
704 Southeastern Building
Greensboro, N. C. 27401
Counsel for Respondent

61





INDEX

Page
Table of Citations iii
Opinions Below 1
Jurisdiction 2
Question Presented 3
Constitutional and Statutory

Provisions Involved 3
Statement of the Case 6
Summary of the Argument 9
Argument
I. THE AGE DISCRIMINATION IN 

EMPLOYMENT ACT ITSELF ESTAB­
LISHES THE RIGHTS OF LITI­
GANTS TO TRY THEIR CASES BY 
JURY. 15

A. On its face the Age Discri­
mination in Employment Act 
provides for legal relief. 15

63



B. Because the Act unequivocally
allows legal relief extrinsic 
aids to construction are in­
appropriate. 22

C. Title Seven is materially 
different from the Age Dis­
crimination in Employment
Act. 24

II. THE SEVENTH AMENDMENT ALSO
ENTITLES PARTIES TO AN ACTION 
UNDER THE AGE DISCRIMINATION 
IN EMPLOYMENT ACT TO A TRIAL 
BY JURY. 31

A. The issue is "legal" rather 
than "equitable" under the 
custom of the courts prior 
to the merger of lav/ and
equity. 36

B. The remedy sought is legal,
not equitable. 38

C. The issue is triable to the
jury given their practical 
abilities and limitations. 43

Conclusion 48

ii

64



TABLE OF CITATIONS

CASES: PAGE:
Anderson v. Federal Cartridge 
Corporation, 62 F.Supp. 775 
(D.C. Minn. 1945) aff'd 156 
F .2d 681 (8th Cir. 1945) 41
Atlantic Coast Line Railway 
Co. v. Phillips, 332 U.S. 168 
(1947) 23
Atlas Roofing Company, Inc. v.
Occupational Safety and Health 
Review Commission, 45 U.S.L.W.
4312 (1977) 36
Beacon Theatres, Inc. v. Westover,
359 U.S. 500, 00 (1959) 33,35,42
Boeing Co. v. Shipman 411 F .2d
365 (5th Cir. 1969) 31,32
Brennan v. Ace Hardware Corp.
495 F.2d 368 (8th Cir. 1974) 40-41,43
Chilton v. National Cash Register 
Company, 370 F.Supp. 660 (S.D.Ohio 
1974) 20
Clark v. Vebersec Finanz- 
Korporation, A.G. 332 U.S. 480 
(1947) 16

iii

65



Cleverly v. Western Electric
Company, 69 F.R.D. 348 (W.D. 
Mo. 1975) 21
Curtis v. Loether, 415 U.S. 189 
(1974) 13,14,29, 

44-48
Dairy Queen v. Wood, 369 U.S. 
469 (1962)
EEOC v. Detroit Edison, 515

22,35,37,38 
42,43,45,47

F.2d 301 (6th Cir.1975) 29
Estes, Carroll C. v. Joseph 
Schlitz Brewing Co. .C-267-WS-72 43
Ex Parte Collett, 337 U.S. 55 
(1949) 23
Fleitmann v. Welsbach Street 
Lighting Co. 240 U.S. 27 (1916) 38,42
Helvering v. Marshall, 303 U.S. 
303 (1938) 17
Hepner v. United States, 213 
U.S. 103 (1909) 38,45
Higgins, Anna.Rose Duncan v. Blue 
Ridge Electric Membership Corp­
oration, C-212-WS-72 43

iv

66



Humphrey v. Southwestern Portland 
Cement Company, 369 F.Supp. 832 
(W.D.Tex.1973), rev'd on other gr.
488 F .2d 691 (5th Cir.1974) 18
Jacob v. New York, 315 U.S. 752 
(1942) 32
Jeanty v. McKey and Poague, Inc.,
496 F .2d 1119 (7th Cir.1974) 19
Johnson v. Georgia Highway Express,
417 F .2d 1122 (5th Cir.1969) 29
LaChappelle v. Owen-Illinois,Inc.,
513 F.2d 286(5th Cir.1975) 29,30
Lee v. Southern Home Sites Corp­
oration, 429 F.2d 290 (5th Cir.
1970) 19
Markham v. Cabell, 326 U.S. 404 
(1945) 16
McClanahan v. Mathews, 440 F .2d
320 (6th Cir.1971) 17
Mitchell v. Caldwell, 249 F .2d 
10 (10th Cir. 1957) 41
Monroe v. Pape, 365 U.S. 167
(1961) 18

v

67



40,43
Monroe v. Penn-Dixie Cement 
Corporation, 335 F.Supp. 231 
(N.D.GA. 1971)
Murphy v. American Motors Sales 
Corp., 410 F.Supp. 1403 (N.D.
Ga. 1976) 19,21
National Labor Relations Board
v. Jones & Laughlin Steel Corp-
ration, 301 U.S. 1 (1936) 35,35,45
Ochoa v. Alterican Oil Company,
338 F.Supp. 914 (S.D. Tex. 1972) 38
Olearchick v. American Steel 
Foundries, 73 F.Supp. 273 
(W.D.Pa.1947) 17
Parsons v. Bedford, 3 Pet. 433 
(1830) 36
Porter v. Georgia Power & Light 
Company, 50 F.Supp. 939 (D.C.Ga.
1943) 41
Porter v. Warner Holding Co. , 328 
U.S. 395 (1946) 38
Robinson v. Lorillard Corp., 444 
F.2d 791 (4th Cir. 1971) 29,30

v i

68



Rogers v. Exxon Research and 
Engineering Company, 404 F.Supp.
324 (D.N.J.1975), rev'd
550 F .2d 834 (3rd Cir.1977) 18
Ross v. Berhard, 396 U.S. 531 
(1970) 34,35,42,47
Shapiro v. United States, 335
U.S. 1 (1948) 17
Slack v. Havens, 522 F.2d 1091
(9th Cir. 1975) 29
St.Clair v. Local Union No. 515,
422 F.2d 128 (6th Cir.1969) 38
Steele v. Title Realty Co., 478 
F.2d 380 (10th Cir.1973) 19
Sullivan v. Little Hunting Park,
Inc., 396 U.S. 229 (1969) 18
Texas and Pacific R. Co. v.
Rigsby, 241 U.S. 33(1916) 38
United States v. Missouri Pacific
Railway Co., 278 U.S. 269
(1929) 23
United States v. Wiltberger, 5 
Wheat. 76 (1820) 23

vii

69



Whitehead v. Shattuck, 138 U.S. 
146 (1891)
Williams v. Matthews Co., 499 
F. 2d 819 (8th Cir. 1974)
Wirtz v. Jones, 340 F.2d 901 
(5th Cir.1965)
Wirtz v. Turner, 330 F .2d 11 
(7th Cir.1964)

CONSTITUTIONAL PROVISIONS:
Constitution of the United States 
Seventh Amendment

31,32

STATUTES:
28 U . S . C . s e c .
28 U . S . C . s e c .
29 U . S . C . s e c .

2 1 6  and. 2 1 7
29 U . S . C . s e c .

29 U . S . C . s e c .
29 U . S . C . s e c .
29 U . S . C . s e c .

29 U . S . C . s e c .

1254 (1)
1292 (b) 
211(b), 215,
216(b)
260 
626 
626(b)
626 (c)

viii

42

19

17

17,41

3,8,11,14,
,35,42,45-48

2
2
21

2,5-6,16-17, 
20,21,39,40 
21 
40

2.3- 4,15-16 
20,21,40
2.4- 5,15-16

70



29 u . s . c . s e c . 6 2 6 (d) 2 , 4 - 5 , 1 5 , 3 0
42 u . s . c . s e c . 2000e 1 8 , 2 4
42 u . s . c . s e c . 2 0 0 0 e - 5 25
42 u . s . c . s e c . 20 OOe- 5 (b) 30
42 u . s . c . s e c . 2 0 0 0 e - 5  ( f ) (1) 3 0 - 3 1
42 u . s . c . s e c . 2 0 0 0 e - 5 ( g ) 2 4 - 2 5
42 u . s . c . s e c . 2000h 2 5 - 2 6
42 u . s . c . s e c . 3604 19
42 u . s . c . s e c . 3612 1 9 , 4 4 , 4 7

Federal Rules of Appellate 
Procedure, Rule 5 2
Federal Rules of Civil Pro­
cedure, Rule 38(a) 33,34

MISCELLANEOUS:
Comment, "Implying Punitive Damages 
in Employment Discrimination Cases",
9 Harvard Civil Rights - Civ. Lib.
Law Review 325, 367-369 19
Comment, "The Right to Jury Trial 
Under Title VII of the Civil Rights 
Act of 1964", 37 U.Chi.L.Rev.
167 (1969) 46
Dobbs, D. B., Remedies
(1973) 39

ix

71



Duda, "Damages for Mental 
Suffering in Discrimination 
Cases", 15 Clev.Mar.L.Rev. 1
(1966) 19
James, "Right to a Jury Trial 
in Civil Actions", 72 Yal.L.J.
655 (1963) 36
United States Equal Employment 
Opportunity Commission, Legis­
lative History of Titles VII and 
IX of Civil Rights Act of 1964, 26,29
113 Congressional Record 31254
(1967) 23

x

72



IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 76-1346

LORILLARD, A DIVISION OF LOEWS THEATRES, 
INC. , Petitioner,

v .

FRANCES P. PONS,
Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR RESPONDENT

OPINIONS BELOW
The opinion 

Court of Appeals 
(Pet. for Cert.,

of the United States 
for the Fourth Circuit 
pp. 2a-7a) is reported

73



at 549 F.2d 950. The opinion of the Uni­
ted States District Court for the Middle 
District of Worth Carolina (Pet. for Cert., 
pp. 7a-12a) is reported at 69 F.R.D. 576, 
and unofficially at 13 F.E.P. Cas. 444.

JURISDICTION
This action was brought by respondent 

in the United States District Court for the 
Middle District of North Carolina, alleging 
age discrimination in employment, with 
jurisdiction based on 29 U.S.C. sec. 626 
(b),(c); 29 U.S.C. sec. 216(b).

The district court's order striking 
respondent's demand for jury trial was en­
tered on January 28, 1976. The district 
court certified this issue for interlocu­
tory appeal, and the United States Court of 
Appeals for the Fourth Circuit agreed to 
entertain the appeal, as provided in 28 
U.S.C. sec. 1292(b); and Federal Rules of 
Appellate Procedure, Rule 5.

The opinion of the court of appeals 
was filed on February 2, 1977, vacating 
the order of the district court and re­
manding the case for further proceedings. 
Petitioner filed a petition for writ of 
certiorari on March 31, 1977, and on June 
27, 1977, this court granted the petition. 
The jurisdiction of this Court is con­
ferred by 28 U.S.C. sec. 1254 (1) .

74



QUESTION PRESENTED
Whether the Age Discrimination in Em­

ployment Act or the Seventh Amendment re­
quires a jury trial upon demand in an act­
ion for damages and injunctive relief under 
that Act.

CONSTITUTIONAL PROVISIONS 
AND STATUTES INVOLVED

Constitution of the United States, 
Seventh Amendment:

In suits at common law, where the val­
ue in controversy shall exceed twenty 
dollars, the right of trial by jury shall 
be preserved, and no fact tried by a jury, 
shall be otherwise re-examined in any Court 
of the United States, than according to the 
rules of the common law.

Age Discrimination in Employment Act 
of 1967, 29 U.S.'C. sec. 626:

(b) The provisions of this chap­
ter shall be enforced in accordance with 
the powers, remedies, and procedures pro­
vided in sections 211(b), 216 (except 
for subsection (a) thereof), and 217 
of this title, and subsection (c) of 
this section. Any act prohibited under 
section 623 of this title shall be deemed 
to be a prohibited act under section 215

75



of this title. Amounts owing to a person 
as a result of a violation of this chapter 
shall be deemed to be unpaid minimum wages 
or unpaid overtime compensation for purposes 
of sections 216 and 217 of this title: 
Provided, That liquidated damages shall 
be payable only in cases of willful vio­
lations of this chapter. In any action 
brought to enforce this chapter the court 
shall have jurisdiction to grant such legal 
or equitable relief as may be appropriate 
to effectuate the purposes of this chapter, 
including without limitation judgments 
compelling employment, reinstatement or 
promotion, or enforcing the liability for 
amounts deemed to be unpaid minimum wages 
or unpaid overtime compensation under this 
section. Before instituting any action 
under this section, the Secretary shall 
attempt to eliminate the discriminatory 
practice or practices alleged, and to 
effect voluntary compliance with the re­
quirements of this chapter through in­
formal methods of conciliation, conference, 
and persuasion.

(c) Any person aggrieved may 
bring a civil action in any court of 
competent jurisdiction for such legal 
or equitable relief as will effectuate 
the purposes of this chapter:
Provided, That the right of any person 
to bring such action shall terminate 
upon the commencement of an action by the

76



Secretary to enforce the right of such em­
ployee under this chapter.

Fair Labor Standards Act. 29 U.S.C. 
sec. 216(b):

Any employer who violates the 
provisions of section 206 or section 
207 of this title shall be liable to 
the employee or employees affected in 
the amount of their unpaid minimum wages, 
or their unpaid overtime compensation, 
as the case may be, and in an additional 
equal amount as liquidated damages. Act­
ion to recover such liability may be main­
tained in any court of competent juris­
diction by any one or more employees for 
and in behalf of himself or themselves and 
other employees similarly situated. No 
employees shall be a party plaintiff to 
any such action unless he gives his 
consent in writing to become such a 
party and such consent is filed in the 
court in which such action is brought.
The court in such action shall, in 
addition to any judgment awarded to the 
plaintiff or plaintiffs, allow a reason­
able attorney's fee to be paid by the 
defendant, and costs of this action. The 
right provided by this subsection to 
bring an action by or on behalf of any 
employee, and the right of any employee 
to become a party plaintiff to any such 
action, shall terminate upon the filing

77



of a complaint by the Secretary of Labor 
in an action under section 217 of this 
title in which restraint is sought of any 
further delay in the payment of unpaid 
minimum wages, or the amount of unpaid 
overtime compensation, as the case may be, 
owing to such employee under section 206 
or section 207 of this title by an employer 
liable therefor under the provisions of 
this subsection.

STATEMENT OF THE CASE
Respondent was discharged from her 

position of financial services coordinator 
by petitioner on January 31, 1975, when 
she was 48 years of age. (A.3). Respon­
dent commenced a civil action against 
petitioner, alleging that her discharge 
was an act of discrimination on the basis 
of her age, and that it violated the Age 
Discrimination in Employment Act of 1967,
29 U.S.C. sec. 623(a)(1). Respondent's 
prayer for relief proposed an injunction 
requiring her reinstatement, and to 
"[a]ward plaintiff monetary damages con­
sisting of wages from date of discharge to 
date of judgment, together with an equal 
amount of liquidated damages." In the 1

1 The Appendix, p.4, erroneously includes 
the word "attorney" after the word 
"plaintiff" and before the word 
"monetary".

78



complaint respondent demanded trial by 
jury. (A. 4-5) .

Petitioner filed a motion to strike 
respondent's jury trial demand. (A.9). 
Following briefing and argument, the dis­
trict court ordered that respondent's de­
mand for jury trial be stricken. (Pet. 
for Cert., p. 7a-12a).

An interlocutory appeal on this issue 
was certified by the district court, and 
was allowed by the court of appeals.

While the appeal was pending in the 
court of appeals, respondent filed a motion 
in that court seeking leave to amend her 
complaint, by adding paragraphs alleging 
that petitioner acted purposely, intent­
ionally, willfully, wantonly, oppress­
ively, and with a reckless disregard of 
respondent's rights; alleging damages in 
addition to loss of wages, consisting of 
depression and anxiety, humiliation and 
embarrassment. The motion also sought 
to substitute for the part of the prayer 
for relief quoted above which seeks dam­
ages, the following:

Award plaintiff monetary damages 
consisting of lost wages and all 
her other actual damages, statu­
tory liquidated damages, and com­
mon law punitive damages. (A. 11-12).

79



A unanimous panel of the court of 
appeals reversed the district court. In 
the opinion written for himself and Cir­
cuit Judge Russell, Senior Circuit Judge 
Bryan expressed the opinion that respondent 
is entitled to trial by jury in this case 
by virtue of both the Seventh Amendment 
and the Age Discrimination Act itself. 
Circuit Judge Butzner stated in his concur­
ring opinion that because the Age Discrim­
ination Act confers on respondent the right 
to trial by jury, it is unnecessary to con­
sider the effect of the Seventh Amendment. 
Respondent's motion for leave to amend the 
complaint was remanded for presentation to 
the district court. (Pet. for Cert., pp. 
2a-7a).2

2 Other cases holding in favor of and 
against the right of jury trial in 
Age Discrimination in Employment Act 
cases are cited in Notes 3 and 2, re­
spectively, of Petitioner's Brief, pp. 
4,6.

80



SUMMARY OF THE ARGUMENT
I. THE AGE DISCRIMINATION TU EMPLOY­

MENT ACT ITSELF ESTABLISHES THE 
RIGHTS OF LITIGANTS TO TRY THEIR 
CASES BY JURY.

A. On its face the Age Discrimination 
in Employment Act provides for legal relief.

In this action respondent seeks lost 
wages, statutory liquidated damages, 
common law actual damages, and punitive 
damages. The Age Discrimination in Em­
ployment Act provides for "such legal or 
equitable relief" as may be appropriate.

The claim for lost wages is based on 
the statutory language "amounts deemed to 
be unpaid minimum wages or unpaid overtime 
compensation." The language is adopted 
by reference from the Fair Labor Standards 
Act. Under that statute, the lower courts 
have uniformly upheld the right to trial 
by jury for lost wage claims in cases 
brought by private individuals.

Both common law actual (e.g., pain 
and suffering) and punitive damages also 
appear to be recoverable under the Age 
Discrimination in Employment Act. Jury 
trials are clearly available for such 
claims.

81



Statutory liquidated damages under 
the Age Discrimination in Employment Act 
are recoverable for willful violations.
This is a deviation from the provision 
in the Fair Labor Standards Act, as amended 
by the Portal-to-Portal Act, authorizing 
courts in their discretion to decline to 
award punitive damages, when it is shown to 
the court's satisfaction that the employer 
acted reasonably and in good faith. Unlike 
this discretionary determination, the 
term willful is appropriate for decision 
by the jury as factfinder.

B. Because the Act' unequivocally 
allows legal relief, extrinsic aids to 
construction are inappropriate.

Because the meaning of the Age Dis­
crimination Act is clear and unambiguous in 
allowing legal relief for violations, it 
is improper to resort to legislative his­
tory and other extrinsic aids to construc­
tion. Nevertheless, an examination of the 
Act's legislative history does not indi­
cate any Congressional intent to make jury 
trials unavailable, and the one reference 
in the floor debates to the mode of trial 
assumes that there will be trial by jury.

C. Title VII is materially different 
from the Age Discrimination in Employment 
Act.

82



Petitioner is wrong in arguing that 
the Age Discrimination in Employment Act 
is so similar to Title VII that Title VII 
cases in the lower courts disallowing 
jury trials should be followed here.
Title VII on its face authorizes only 
"equitable relief". The legislative his­
tory of Title VII clearly shows the intent 
of Congress not to allow jury trials in 
cases brought under that statute, except 
for certain types of criminal contempt 
proceedings. There are other marked 
differences between Title VII and the 
Age Discrimination in Employment Act, con­
traindications that enforcement procedures 
under both statutes should be the same; 
these include the availability of class 
action under Title VII and not under the 
Age Act and several significant differences 
in the handling of complaints filed with 
the respective administrative agencies.

II. THE SEVENTH AMENDMENT ALSO EN­
TITLES PARTIES TO AN ACTION UNDER 
THE AGE DISCRIMINATION IN EMPLOY­
MENT ACT TO A TRIAL BY JURY.

Any doubt as to the availability of 
a jury trial is to be resolved in favor of 
that right, since it is a constitutional 
one, and no similar requirement protects 
trials by the court.

Treatment of lost wages as incidental 
to the equitable right of reinstatement

83



and thereby not amenable to jury trial, is 
an effort to revive the equity clean-up 
doctrine. The equity clean-up doctrine 
has been soundly rejected by decisions of 
this Court which hold that the right to 
jury trial on legal claims cannot be lost 
by the court's determination of equitable 
issues in the same case.

Cases disallowing jury trials in pro­
ceedings before administrative bodies are 
inappropriate here, because here private 
rather than public rights are being liti­
gated, the government is not a party to 
the action, and the case is before a court 
instead of an administrative agency.

A. The issue is legal rather than 
equitable under the custom of the courts 
prior to the merger of law and equity.

Jury trials are claimable for causes 
of action arising under modern statutes, 
which deal with issues unknown at common 
law. The substantive claim in this case 
is legal, not equitable, analogous to the 
common law claim for breach of employment 
contract by wrongful discharge.

B. The remedy sought is legal, not 
equitable.

The claim for lost wages in this 
case is for legal relief. Under the Fair

84



Labor Standards Act provision for recovery 
of unpaid minimum wages or overtime com­
pensation, adopted by the Age Discriminat­
ion in Employment Act, the recovery and 
computation of the damage award are not dis 
cretionary. In accordance with well establ 
ished principles the punitive and liqui­
dated damage claims made by respondent are 
not triable in a court of equity, but must 
be presented to a common law court. While 
respondent also seeks the equitable remedy 
of reinstatement, her right to trial by 
jury on the legal claims for damages are 
not to be lost by court trial of the common 
issues of fact.

C. The issue is triable to the jury 
given their practical abilities and limi- 
tations.

The trial of an age discrimination 
case is well within the practical abilities 
and limitations of jurors, because the 
computations of damages are governed by 
well established formulae, are mathemati­
cally simple, and may be reasonably esti­
mated when the exact amount due cannot be 
ascertained.

*  * *  *

The Court's analysis in this case 
should be aided by the recent decision of 
Curtis v. Loether, 415 U.S. 189 (1974),

85



which held there is a right to trial by 
jury under the fair housing law, Title VIXX 
of the Civil Rights Act. That statute 
provides for recovery of actual damages, as 
well as allowing equitable relief.

The worthy objective of shielding 
victims of discrimination from juror bias 
does not overcome the Seventh Amendment 
right of trial by jury, the Court held in 
Curtis v. Loether. The same reasoning 
applies in the present case.

An action for employment age discrim­
ination involves the adjudication of legal 
rights triable by jury, just as is true of 
housing discrimination claims.

86



ARGUMENT
I. THE AGE DISCRIMINATION IN EMPLOY­

MENT ACT ITSELF ESTABLISHES THE 
RIGHTS OF LITIGANTS TO TRY THEIR 
CASES BY JURY.

In the complaint respondent sought 
"monetary damages" consisting of lost wages 
from time of discharge to date of judgment 
and statutory liquidated damages. In her 
proposed amendment to the complaint, which 
has been remanded to, but has not yet been 
decided by, the district court, plaintiff 
further seeks common law actual damages 
and common law punitive damages.

A. On its face the Age Discrimination 
in Employment Act provides for legal relief.

The Age Discrimination in Employment 
Act, 29 U.S.C. sec. 626(b), (c), provides
that the courts shall have jurisdiction 
in actions brought by private individuals 
alleging age discrimination "to grant 
such legal or equitable relief as may be 
appropriate . . ., including without limi­
tation, judgments compelling employment, 
reinstatement or promotion, or enforcing 
liability for amounts deemed to be unpaid 
minimum wages or unpaid overtime compen­
sation under this section;" and again 
provides that such actions may be main­
tained in any court of competent juris­
diction for "such legal or equitable relief

87



as will effectuate the purposes of this 
chapter." It is also provided that the 
Age Discrimination in Employment Act shall 
be enforced in accordance with the "powers, 
remedies, and procedures" provided in 
section 216 (and other sections), and any 
amount owing to a person as a result of 
age discrimination "shall be deemed to be 
unpaid minimum wages or unpaid overtime 
compensation" for the purpose of section 
216.

The term "legal relief" cannot be re­
garded as having no meaning.  ̂ it is to be 
assumed, as seems reasonable, that the 
term "equitable relief" applies to the 
enumerated remedies of "compelling em­
ployment", "reinstatement", and "pro­
motion". The term "legal relief" then 
would logically apply to the enumerated 
remedy of "enforcing the,liability for 
amounts deemed to be unpaid minimum wages 
or unpaid overtime compensation." This 
language clearly refers to the Fair Labor 
Standards Act, 29 U.S.C. sec. 216(b),

3
See e.g., Clark v. Vebersec Finanz- 
Korporation, A.G., 332 U.S. 480, 488 
(1947); Markham v. Cabell, 326 U.S. 404, 
410-411 (1945).

88



incorporated by reference in the above- 
quoted part of the Age Discrimination in 
Employment Act. Applying section 216(b), 
the lower courts have uniformly held that 
there is a right to jury trial.
McClanahan v. Mathews, 440 F.2d 320 (6th 
Cir. 1971); Wirtz v. Jones, 340 F.2d 901 
(5th Cir. 1965); Wirtz v. Turner, 330 F.2d 
11 (7th Cir. 1964); Olearchick v. American 
Steel Foundries, 7 3 F.Supp. 273 (VJ.D.Pa. 
1947). When Congress enacted the Age 
Discrimination in Employment Act and ex­
pressly provided that the "procedures" in­
voked in section 216 (b) apply to actions 
arising under the new statute, it must be 
assumed that one of those applicable 
"procedures" intended by Congress was the 
right to trial by jury so firmly establish­
ed under section 216 (b) . Helvering v. 
Marshall, 303 U.S. 303 (1938). Shapiro v. 
United States, 335 U.S. 1 (1948).

While liability for amounts deemed un­
paid minimum wages or unpaid overtime com­
pensation is the only legal remedy listed, 
the words "including without limitation" 
are used to introduce the series. Other 
forms of legal relief which respondent 
contends are available under the Age Dis­
crimination in Employment Act include 
common law actual damages, common law 
punitive damages, and statutory liquidated 
damages.

89



_The Age Discrimination in Employment 
Act is to be regarded as having established 
a new statutory tort, and once liability, 
under the statute appears, the full panoply 
of usual tort remedies should be available 
to compensate injured parties for all pro­
vable damages. "[T]he existence of a 
statutory right implies the existence of all 
necessary and appropriate remedies."
Sullivan v. Little Hunting Park, Inc., 396 
U.S. 2 2 9 ,  239 ( 1 9 6 9 ). Generally, the civil 
rights laws "should be read against the 
background of tort liability that makes a 
man responsible for the natural conse­
quences of his actions." Monroe v. Pape,
365 U.S. 167, 187 (1 9 6 1).4 it is submitted, 
therefore, that common law actual damages, 
such as damages for emotional distress, are 
recoverable under the Act.

4
The one case considering this issue and 
allowing recovery for pain and suffering 
in an age discrimination case, Rogers v. 
Exxon Research and Engineering Company, 404 
P.Supp. 324 (D.N.J. 1975), was reversed on 
appeal, 550 F.2d 834 (3rd Cir. 1977).
Under other civil rights statutes lower 
courts have allowed recoveries for mental 
distress. Title VII, 42 U.S.C. sec. 2000e: 
Humphrey v. Southwestern Portland Cement 
Company, 369 F.Supp. 832 (W.D.Tex. 1973),

90



Punitive damages have always been re­
coverable at common law, and where not ex­
pressly precluded by a statute permitting 
legal relief generally, may be recovered 
under the statute in accordance with common 
law principles. If the defendant acts will­
fully and intentionally and in gross disre­
gard of the rights of plaintiff under the 
statute, punitive damages are recoverable. 
Lee v. Southern Homes Sites Corporation, 429 
F.2d 290 (5th Cir. 1970). On this basis 
common law punitive damages were held re­
coverable under the Age Discrimination in 
Employment Act. Murphy v. American .Motors 
Sales Corp., 410 F.Supp. 1403 (N.D.Ga.
1976) .

4 Continued
rev'd on other gr. 488 F.2d 691 (5th Cir. 
1974). Title VIII, 42 U.S.C. sec. 3604, 
3612: Williams v. Matthews Co., 499 F.2d
819 (8th Cir. 1974); Jeanty v. HcKey and 
Poague, Inc■, 496 F.2d 1119 (7th Cir. 1974); 
Steele v. Title Realty Co., 478 F.2d 380 
(10th Cir. 1973). The availability of such 
actual damages is also supported in the 
literature. Comment, "Implying Punitive 
Damages in Employment Discrimination Cases," 
9 Harv. Civ. Rights - Civ. Lib. L.Rev. 325, 
367-369; Duda, "Damages for Mental Suffering 
in Discrimination Cases," 15 Clev. Mar. L. 
Rev. 1 (1966).

91



Statutory liquidated damages in an 
amount equal to the amounts deemed un­
paid minimum wages or overtime compen­
sation, are also specifically recoverable 
for willful violations, according to sec­
tion 626 (b).  ̂ Under Section 216(b) as 
originally enacted, liquidated damages 
were to be awarded as a matter of course 
whenever liability for unpaid minimum

5
In the district court opinion it is 
stated that respondent has conceded 
that the liquidated damages issue would 
not be triable to a jury. (Pet. for 
Cert. pp. 7a-8a, n. 2). This concession 
was actually that Chilton v. National 
Cash Register Company, 370 F.Supp. 660 
(S.D.Ohio 1974), the only published de­
cision dealing with the right to a jury 
trial under the Age Discrimination in 
Employment Act at the time of the dis­
trict court's decision, had held that the 
issue of damages as unpaid wages was for 
the jury, but that the issue of liquidated 
damages was not triable by jury. It is 
not respondent's position that Chilton 
was correct in withholding the liquidated 
damage question from the jury.

92



wages or overtime compensation was estab­
lished. In 1947, Congress passed the 
Portal-to-Portal Act, 29 U.S.C. sec. 260, 
which provided that the court in its sound 
discretion could decline to award liqui­
dated damages, "if the employer shows to 
the satisfaction of the court that the act 
or omission . . . was in good faith and
that he had reasonable grounds for be­
lieving that his act or omission was not a 
violation of the Fair Labor Standards Act 
. . . ." The Age Discrimination in Employ
ment Act incorporated by reference the 
remedies and procedures of sections 211(b) 
215, 216, and 217 of the Fair Labor Stand­
ards Act, but there was no incorporation 
either expressly or by implication of 
section 260 of that act. Congress chose 
another method to modify the strict lia­
bility for liquidated damages under 216 
(b), by providing in section 626 (b) , that 
liquidated damages are to be awarded only 
in cases of "willful violations". Thus, 
the fact finding of the presence or ab­
sence of willfullness has been prescribed, 
instead of the court's being satisfied and 
exercising its discretion, as a vehicle 
for avoiding liquidated damages lia­
bility. Therefore, liquidated damages are 
another form of "legal relief" provided 
for by section 626(b). Cleverly v.
Western Electric Company, 69 F.R.D. 348 
(W.D.Mo. 1975); Cf, Murphy v. American 
Motors Sales Corp., supra.

93



It is axiomatic that when the gist of 
the prayer for relief is monetary damages, 
the remedy is legal in nature, and the 
right of trial by jury attaches. Dairy 
Queen v. Wood, 369 U.S. 469 (1962) . Re­
spondent has identified four types of mone­
tary damages coming within the term "legal 
relief" expressly invoked by Congress: 
amounts deemed unpaid minimum wages or over­
time compensation, common law actual dam­
ages, common law punitive damages, 
and statutory liquidated damages. Two of 
these types of legal relief were requested 
by respondent in her original complaint, 
and the other two are being sought by the 
motion to amend the complaint which has 
been remanded to the district court.

B. Because the Act unequivocally 
allows legal relief extrinsic aids to 
construction are inappropriate.

Here then Congress has expressly and 
unequivocally allowed the recovery of 
"legal relief" for age discrimination, and 
respondent has prayed for each right of 
legal relief that may be regarded as avail­
able under the statute. Yet petitioner 
would seek to deprive respondent of her 
jury trial right in this case by ignoring 
the unmistakable language of the statute, 
and by attempting to divine Congressional 
intent to make this statute a part of a 
general federal program against employment

94



discrimination for which trial by jury is 
unavailable. This effort is in conflict with 
universally accepted principles of statutory 
construction. If the meaning of a statute is 
clear, the courts are not at liberty to 
resort to legislative history and other 
extrinsic aids to construction. United 
States v. Missouri Pacific Railway Co.,
278 U.S. 269, 277 (1929); Ex parte Collett, 
337 U.S. 55, 59 (1949); United States v. 
Wiltberger, 5 Wheat. 76, 95-96 (1820).
There must be an uncertainty or ambiguity 
in the statute to warrant reference to 
other statutes for the purpose of constru­
ing it. Atlantic Coast Line Railway Co. v. 
Phillips, 332 U.S. 168 (1947). The term 
"legal remedy" is plain and certain; there 
is no vagueness or ambiguity which permits 
recourse to extrinsic aids to construction.

Nevertheless, neither an examination 
of the legislative history of the Age Dis­
crimination in Employment Act, nor a com­
parison of this Act with other civil rights 
laws, is of any benefit to petitioner.

Apparently the only reference in the 
legislative debates and committee proceed­
ings about the Act that touches upon this 
issue, is a stated assumption that these 
cases are triable by a jury. In a discussion 
on the Senate Floor, Senator Javits said that 
in an age discrimination case "[a] jury will 
answer Yes or No." 113 Cong. Rec. 31254

95



(1967).
C. Title Seven is materially different 

from the Age Discrimination in Employment 
Act.

Petitioner argues that the Age Discrimi­
nation in Employment Act must be given a 
construction identical to Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. sec. 
200Ge, with respect to the availability of 
trial by jury. In the specification of 
judicial remedies, however, the two 
statutes are altogether different. Title 
VII provides:

If the Court finds that the 
respondent has intentionally 
engaged in or is intention­
ally engaging in an unlawful 
employment practice charged 
in the complaint, the court 
may enjoin the respondent 
from engaging in such unlaw­
ful employment practice, and 
order such affirmative action 
as may be appropriate, which 
may include, but is not limit­
ed to, reinstatement or hiring 
of employees, with or without 
backpay (payable by the employ­
er, employment agency, or labor 
organization, as the case may 
be, responsible for the unlawful

96



employment practice), or 
any other equitable relief as 
the court deems appropriate.
42 U.S.C. sec. 2000e-5(g).
[emphasis supplied].

Another provision of this Act expressly 
provides for jury trials in certain cases 
of criminal contempt. 42 U.S.C. sec.
2000h.

Section 2G00e-5 on its face provides 
only for equitable relief. The remedies 
of reinstatement and award of back pay 
are to be granted as a part of the court's 
injunctive decree.

Legislative history supports this 
interpretation. The report of additional 
views of House Judiciary Committee member 
Congressman Meader, took exception to the 
"growing and . . . alarming tendency in
adopting new Federal programs to utilize 
the sanction of what may be called govern­
ment by injunction. . . . Such a decree 
is enforced by contempt proceedings in 
which there is no right to jury trial, and 
in case the defendant is found to be in 
contempt, he is punished by imprisonment at 
the discretion of the judge. The effect 
of the employment of this sanction of 
injunction rather than a civil action at 
law for the recovery of damages or the 
institution of criminal proceedings by

97



indictment or information is that the 
defendant is shorn of most of the protections 
set forth in the Bill of Rights of our 
Constitution." Congressman Header and other 
members of the committee were opposed to the 
judicial remedies created in Title VII, be­
cause trial by jury was not made available. 
United States Equal Employment Opportunity 
Commission, Legislative History of Titles 
VII and IX of Civil Rights Act of 1964, pp. 
2043, 2046-2050. (Hereinafter cited as 
"Legislative History").

It was the opposition to the elimina­
tion of trial by jury that brought about 
the compromise Dirksen-Mansfield provision, 
as altered by the so-called "Talmadge Amend­
ments" , allowing jury trials in certain 
criminal contempt cases. This provision is 
codified in 42 U.S.C. sec. 2000h. Legisla- 
tive History, pp. 3379-3382, 3403-3409,
3441, 3467.

In the Senate floor debates it is clear 
that both the proponents and opponents of 
Title VII were aware that no jury trial was 
provided for civil actions to enforce the 
statute.^

Mr. ERVIN, 
be entered 
wages to a

Under Title VII, an order can 
ordering a man to pay back 
person who had never done a

98



Understandably the lower court cases

6 Continued
day's work for him. The amount of back 
wages may largely exceed the jurisdic­
tional amount requiring a jury trial in 
common law cases under the Constitution. 
Title VII contains no requirement for a 
jury trial under any circumstances?
Mr. CASE. So far as the act itself is 
concerned, there is no provision for jury 
trial. . . .
Mr. ERVIN. No jury trial is provided.
Mr. CASE. No jury trial is provided under 
the terms of this section.
Mr. ERVIN. With respect to the determi­
nation of the original question, that is.
Mr. CASE. No; except, possibly, if the 
suit were brought by an individual. In 
that case, I believe it is possible that 
under the statute a jury trial for crimi­
nal contempt might be ordered.
Mr. ERVIN. Inasmuch as this is an in­
junctive procedure, it would be on the 
equity side of the docket, and no jury 
trial would be allowed. Is that not 
correct?

99



are in agreement that under Title VII

6 Continued
Mr. CASE. That is a technical matter, 
varying in each jurisdiction. It would 
depend on what kind of docket there was in 
the jurisdiction; whether there were two 
dockets or whether there were one system. 
Whether a person would get a jury trial 
would depend on the system. Only in the 
matter of criminal contempt would the 
question arise. The difference between 
criminal contempt and civil contempt re­
quires a nicety of perception at which the 
Senator of North Carolina is much better 
than the Senator of New Jersey.
MR. ERVIN. Does not the Senator from New 
Jersey agree with the Senator from North 
Carolina that a suit in which injunctive 
relief is sought or granted is necessarily 
an equity proceeding in which there is no 
right of trial by jury?
Mr. CASE. There is no question about that.
Mr. ERVIN. All of the proceedings under 
Title VII will be without a jury trial.
Is that correct?
Mr. CASE. It will be done without a jury 
trial in the case of the determination of 
the fact of the first instance.

100



there is no right of trial by jury.7 
Because of the abundantly demonstrated 
legislative intent not to have jury trials 
under Title VII, and the complete absence 
of anti-jury motivation on the part of 
Congress in adopting the Age Discrimination 
in Employment Act, the Title VII cases 
rejecting juries are irrelevant here.

While procedures under the Age Act and 
Title VII bear some similarity (Pet. Br.
7 - 8), there are also marked differences. 
Unlike the Age Act, Title VII has no pro­
vision for liquidated damages. Class 
actions are not permitted under the Age 
Act, La Chapelle v. Owen-Illinois, Inc.,
513 F.2d 286 (5th Cir. 1975), while class

6 Continued
—  Legislative History, pp. 3295-3296.

7
Johnson v. Georgia Highway Express, 417 
F.2d 1122 (5th Cir. 1969); Slack v. Havens, 
522 F.2d 1091 (9th Cir. 1975); EEOC v. 
Detroit Edison, 515 F .2d 301 (6th Cir.
1975); Robinson v. Lorillard Corp., 444 
F-2d 791, 802 (4th Cir. 1971) (dictum).
This Court took note of courts of appeals 
decisions holding jury trials inapplicable 
in Title VII cases but would "express no 
view on the jury trial issue in that con­
text," in Curtis v. Loether, 415 U.S. 189, 
196-197 (1974).

101



actions are a preferred method of adjudicat­
ing Title VII claims, Robinson v. Lorillard, 
444 F .2d 791 (4th Cir. 1971). The Equal 
Employment Opportunity Commission adminis­
ters Title VII, while the Age Act is ad­
ministered by the Department of Labor.
Under the Age Act the Department of Labor 
has a mandatory obligation to attempt to 
resolve the dispute by informal means, 29 
U.S.C. sec. 626(d), but under Title VII the 
Equal Employment Opportunity Commission has 
no similar duty, 42 U.S.C. sec. 2000e-5(b).
A plaintiff under the Age Act may file his 
case in court anytime after he has given 
sixty days notice to the Secretary of Labor 
of his intention to sue, 29 U.S.C. sec.
626 (d) , but under Title VII litigation can­
not be commenced until a notice of right to 
sue has been received from the EEOC and 
then an action must be filed within ninety 
days following receipt of the notice, 42 
U.S.C. sec. 2000e-5(f) (1).

Even without considering the radical­
ly different legislative history of the two 
statutes, the procedures for enforcing 
claims under them are so disparate that it 
cannot be maintained any uniform national 
policy would be served by disallowing jury 
trials under both statutes. The most 
crucial difference between these statutes 
with regard to the jury trial, of course,

102



is that Title VII on its face is restricted 
to "equitable relief", whereas the Age Act 
provides for "legal or equitable relief".

II. THE SEVENTH AMENDMENT ALSO
ENTITLES PARTIES TO AN ACTION 
UNDER THE AGE DISCRIMINATION IN 
EMPLOYMENT ACT TO A TRIAL BY 
JURY.

In a time of congested court dockets 
and delays in reaching trials that become 
almost intolerable, when there is a sense 
of urgency to streamline our system of 
justice, the institution of trial by jury 
has been questioned and criticized in some 
quarters. In a time when this great insti­
tution is being probed for weaknesses, it 
is well that we be reminded of its strengths: 
"how in our fallible system of human justice 
it is the best instrument yet devised for 
the determination of facts, how even its 
imperfections operate to rub the rough edges 
off of technical principles of law when they 
would result in unjust verdicts, how it is 
constantly improving with the progress of 
our jurisprudence and with the advance of 
education and enlightenment, how it gives 
the citizen a proud and rightful place in 
the administration of justice, and tends to 
make real our utopian dream of a 'government

103



of the people, by the people, and for the 
people.'" Those who disagree with the 
values embraced within our jury system are 
not free to make their personal philosophies 
a basis for undermining it through the judi­
cial, or even the legislative, process.
They must await an amendment to the Consti­
tution. There "is no occasion for debate 
on that subject, because our forefathers 
wrote into our Constitution the right of 
trial by jury in both criminal and civil 
cases." "The right of jury trial in civil 
cases at common law is a basic and funda­
mental feature of our system of federal 
jurisprudence which is protected by the 
Seventh Amendment. A right so fundamental 
and sacred to a citizen . . . should be 
jealously guarded by the courts." Jacob 
v. New York, 315 U.S. 752, 753 (1942) .

8
Circuit Judge Rives, concurring and 
dissenting in Boeing Co. v. Shipman, 411 
F.2d 365, 378 75th Cir. T 9 6 9 ) .

104



Any doubt as to the availability of a 
jury trial is to be resolved in favor of 
that right, as Mr. Justice Black has 
emphasized. "[T]he right to jury trial is 
a constitutional one, however, while no 
similar requirement protects trials by 
the court. . . . "  Beacon Theatres, Inc, 
v. Westover, 359 U.S. 500, 510 (1959).

By contending that lost wages, a part 
of the monetary relief sought by respondent, 
is but an adjunct or is incidental to the 
equitable remedy of reinstatement, petition­
er seeks to revive the defunct equity clean­
up doctrine. (Pet. Br. 14-15). In Beacon 
Theatres, Inc, v. Westover, supra, the 
point was.made that the 1938 merger of law 
and equity and the Rule 38(a), Federal Rules 
of Civil Procedure, provision that "the 
right to trial by jury shall be preserved 
inviolate," had the effect of narrowing 
equitable jurisdiction and broadening the 
right to jury trial. Mr. Justice Black 
concluded that "only under the must impera­
tive circumstances, circumstances which 
. . . we cannot now anticipate, can the 
right to a jury trial of legal issues be 
lost" through the court's determination of 
equitable.issues in the same case. 359 
U.S. 510-511. The effect of the holding 
in that case, where the complaint and 
counterclaim both alleged anti-trust law 
violations, and the complaint sought only 
injunctive relief, but the counterclaim

105



sought damages as well, was to require the 
common issues of anti-trust violations to 
be tried by a jury. An example of how the 
1938 merger and Rule 38(a) converted what 
was formerly an equitable proceeding into 
an action to which the jury trial right 
attached is provided by Ross v, Bernhard,
396 U.S. 531 (1970). This was a stockholder 
derivative suit. Prior to 1938 the suit 
would have had to be maintained in a court 
of equity sitting without a jury, because 
stockholders were not accorded standing in 
a court of law to seek redress for injuries 
done to their corporations; but if the 
corporation itself had sued, a jury trial 
would have been available prior to 1938.
The Court concluded that a determination of 
whether the case is triable by a jury, must 
no longer depend on the identity of the 
plaintiff. It was held that because jury 
trials had formerly been available in some 
cases of this nature, the right to trial 
by jury could now be claimed in all such 
cases. Where both legal and equitable 
remedies are sought in the same action, the 
right of trial by jury will not be sub­
merged. Ross v. Bernhard, supra, 396 U.S. 
at 537-538 (1970), held that "where equita­
ble and legal claims are joined in the same 
action, there is a right to jury trial on 
the legal claims which must not be infringed 
either by trying the legal issues as inci­
dental to the equitable ones or by a court 
trial of a common issue existing between the

106



claims.
The case upon which petitioner strong­

ly relies, National Labor Relations Board 
v. Jones & Laughlin Steel Corporation, 301 
U7S". 1 (1936) , Is a pre-merger case which, 
after Beacon Theatres, Inc, v. Westover,
Ross v. Bernhard and Dairy Queen v. Wood, 369 
U.S. 469 (1962), can no longer be regarded 
as controlling for the purpose cited by peti­
tioner. There an order of the National 
Labor Relations Board which directed rein­
statement of unlawfully discharged employees 
and directed back pay for these employees, 
was held not to violate the Seventh Amend­
ment. The statement in Jones & Laughlin 
that the Seventh Amendment is not applica- 
ble to cases "where recovery of money 
damages is an incident to equitable relief 
even though damages might have been recover­
ed in an action at law," 301 U.S. at 48, 
has not withstood the test of time. It is 
an application of the now discredited 
equity clean-up doctrine. The aspect of 
the Jones & Laughlin case which has current 
validity is that there is no right to trial 
by jury in a proceeding before an admini­
strative tribunal, not in the nature of an 
action at common law, where public rights 
are being litigated and the government is 
suing in its sovereign capacity. Most 
recently, this doctrine has been relied 
upon by the Court in determining that civil 
penalties enforced administratively by the

107



Occupational Safety and Health Administra­
tion, are not subject to the right of trial 
by jury in Atlas Roofing Company, Inc, v. 
Occupational Safety and Health Review 
Commission, 45 U.S.L.W. 4312 (1977). Since 
actions to recover for violations of the Age 
Discrimination in Employment Act are commit­
ted to litigation by private parties in 
courts of competent jurisdiction, and not to 
administrative tribunals, the Jones & 
Laughlin case is not apposite here.

The modern decisions of this Court have 
been summarized as requiring that a jury 
trial be provided if (1) the issue is 
"legal" rather than "equitable" under the 
custom of the courts prior to the merger 
of law and equity, (2) the remedy sought 
is legal, not equitable, and (3) the issue 
is triable to the jury given their practi­
cal abilities and limitations. James,
"Right to a Jury Trial in Civil Actions,"
72 Yal. L.J. 655 (1963). Each of these 
points is resolved in favor of the right 
to trial by jury in the present case.

A. The issue is "legal" rather than 
"equitable" under the custom of the courts 
prior to the merger of law and equity.

As stated by Justice Story in Parsons 
v. Bedford, 3 Pet. 433, 447 (1830), the 
availability of a jury trial depends upon 
whether legal rights are at issue, not

108



whether the particular action is derived 
from one of the common law forms:

The phrase "common law," found 
in this clause, is used in con­
tradistinction to equity, and 
admiralty, and maritime juris­
prudence. . . .  By common law 
[the framers of the Amendment] 
meant . . . not merely suits, 
which the common law recognized 
among its old and settled pro­
ceedings, but suits in which 
legal rights were to be ascer­
tained and determined, in 
contradistinction to those 
where equitable rights alone 
were recognized, and equitable 
remedies were administered.
. . . In a just sense, the 
Amendment may then well be 
construed to embrace all suits 
which are not of equity and 
admiralty jurisdiction, what­
ever might be the peculiar 
form which they may assume to 
settle legal rights.
Accordingly, this Court has held there 

is a jury trial right in many causes of 
action which are based on modern statutes, 
where the theories, rights, and obligations 
at issue were unknown to the common law. 
Dairy Queen, Inc, v. Wood, 369 U.S. 469,

109



(1962) (trademark laws); Hepner v. United 
States, 213 U.S. 103 (1909) (immigration 
laws); Fleitmann v. Welsbach Street 
Lighting Co., 240 U.S. 27 (1916) (anti­
trust laws); Porter v. Warner Holding Co., 
328 U.S. 395 (1946) (Emergency Price Con­
trol Act); Texas and Pacific R. Co. v. 
Rigsby, 241 u'.S. 33 (1916) (Safety Appli- 
ance Act).

The substantive issue in a case under 
the Age Discrimination in Employment Act 
is legal, not equitable. A claim of 
employment discrimination with a prayer 
for lost wages is analogous to the common 
law action for breach of contract by wrong­
ful discharge, in which the right of trial 
by jury obtained. St. Clair v. Local Union 
No. 515, 422 F.2d 128 (6th Cir. 1969);
Ochoa v. American Oil Company, 338 F.Supp. 
914 (S.D.Tex. 1972).

B. The remedy sought is legal, not 
equitable.

The remedies of a legal nature prayed 
for in the original complaint are for 
damages consisting of lost wages and for 
liquidated damages. By the proposed 
amendment to the complaint, respondent 
also seeks common law actual damages 
and common law punitive damages.

Petitioner argues that the wage

110



loss recovery is restitutionary, and there­
by somehow becomes more easily submerged 
into an equitable remedy. (Pet. Br. 14- 
17). For a wrongfully discharged employee, 
like respondent, the recovery is not 
restitutionary at all. Restitution 
implies some type of disgorging of unjust 
enrichment. Because petitioner no longer 
had the benefit of respondent's services 
after the wrongful discharge, there could 
have been no unjust enrichment. See D.B. 
Dobbs, Remedies, 222-229 (1973). Of the 
three types of monetary remedies, restitu­
tion, reliance and expectation, it is only 
the last that is relevant in a discrimina­
tory discharge case. For breach of an 
employment contract, the remedy is clearly 
in the expectation category: the payment
the employee would have received if he or 
she had not been discharged, less any 
amount obtained from substitute employment. 
D.B. Dobbs, supra, at 924-927.

Petitioner further contends that the 
granting or withholding of damages con­
sisting of lost wages in an age discrimi­
nation case is discretionary with the court, 
and thereby the remedy loses its legal 
character. (Pet. Br. 14-17, 22). This 
contention is contradicted by the settled 
case law under the Fair Labor Standards 
Act provision, 29 U.S.C. sec. 216(b), in­
corporated by reference as the source for 
recoveries in the nature of unpaid minimum

111



wages and overtime compensation under the 
Age Discrimination in Employment Act,
29 U.S.C. sec. 626(b). The term un­
paid minimum wages and overtime compen­
sation contained in the Age Discrimina­
tion Act has been interpreted in a dis­
charge case to mean "the difference between 
the value of the compensation by way of 
salary together with other specific 
monetary benefits, such as increased 
pension benefits which would have vested 
prior to trial, to which plaintiff would 
be entitled had he remained employed by 
defendant until the trial date and the 
value of his total benefits and earnings 
at other jobs from his discharge until 
the trial date." Monroe v. Penn-Dixie 
Cement Corporation, 335 F.Supp. 231, 234- 
235 (N.D.Ga. 1971).  ̂ It is well establish­
ed that awards under Section 216(b) are 
not discretionary; they must be computed 
with as much precision as possible, based

This statement was cited with approval in 
Brennan v. Ace Hardware Corp., 495 F.2d 
368, 373 (8th Cir. 1974). Petitioner im­
properly cited that case for the statement 
that relief under Section 626 of the Age 
Discrimination in Employment Act is with­
in the equitable discretion of the District 
Court. (Pet. Br. 22) What the Eighth Cir­
cuit really said was, "Specific questions

112



on the evidence adduced. Anderson v. 
Federal Cartridge Corporation, 62 F.Supp. 
775 (D.C.Minn. 19451, aff'd. 156 F.2d 681 
(8th Cir. 1945) (to the tenth of a cent 
per hour); Porter v. Georgia Power and 
Light Co., 50 F.Supp. 939 (D.C.Ga. 1943); 
Wirtz v. Turner, 330 F.2d 11 (7th Cir. 
1964); Mitchell v. Caldwell, 249 F.2d 10 
(10th Cir. 1957) .

Of course, if actual common law 
damages are recoverable under respondent's 
proposed amendment to the complaint, these 
clearly consist of a legal remedy in the 
traditional sense.

As petitioner correctly states, 
"Actions in equity refuse to enforce a 
penalty and will not award punitive 
damages." (Pet. Br. 27). Punitive claims, 
including statutory penalties such as the 
liquidated damages provided for in the Age 
Discrimination in Employment Act, and 
common law punitive damages which are also 
sought in this case, are elements favorable 
to trial by jury, in that they are foreign

9 Continued
concerning damages or other relief are 
within the equitable discretion of the 
district court. . . . "  495 F.2d at 373-
374.

113



to equity. Fleitmann v. Welsbach Street 
Lighting Co."̂  240 U . S. 27 (1916) ; Ross v. 
Bernhard, 396 U.S. 531 (1970).

These remedies sought in respondent's 
action make it unmistakably a suit for a 
money judgment, which is classically a 
suit at common law to which the jury trial 
right attaches. Whitehead v. Shattuck, 138 
U.S. 146 ,  151 ( 1 8 9 T T

The legal nature of the remedies sought 
here are much easier to perceive than 
the complex accounting for trademark viola­
tion prayed for in Dairy Queen, Inc, v. Wood, 
369 U.S. 469 (1962 )  , which was there held
subject to the Seventh Amendment.

While respondent also seeks the equita­
ble remedy of reinstatement, the right to 
trial by jury arises with respect to the 
plainly legal claims for damages, and this 
right is not to be lost by trial of the 
legal issues incidental to the equitable 
ones or court trial of the common liability 
issue. Ross v. Bernhard, supra; Beacon 
Theatres, Inc, v. Westover, supra; Dairy 
Queen, Inc, v. Wood, supra.

114



C. The issue is triable to the jury- 
given their practical abilities and 
limitations.

The computations of damages are govern­
ed by well established formulae, are mathe­
matically simple, and may be reasonably 
estimated when the exact amount due cannot 
be ascertained. Monroe v. Penn-Dixie 
Cement Corporation, 335 F.Supp. 231, 234- 
235 (N.D.Ga. 1971); Brennan v. Ace Hardware 
Corporation, 495 F.2d 368, 373 (8th cir. 
1974). Certainly age discrimination cases 
do not approach the complexity of account­
ing actions for trademark violations held 
to be subject to trial by jury in Dairy 
Queen, Inc, v. Wood.10

10
Prior to the district court's decision of 
this case, two cases alleging violations 
of the Age Discrimination in Employment 
Act had been tried in the Middle District 
of North Carolina. In both of these 
cases a jury trial was demanded by the 
plaintiff, and in both cases the issues 
were submitted to a jury. These cases 
are Carroll C. Estes v. Joseph Schlitz 
Brewing Company, C-267-WS-72 and Anna 
Rose Duncan Higgins v. Blue Ridge Electric 
Membership Corporation, C-212-WS-72. 
Relevant portions of those files are in­
cluded in the record of the present case.

115



* * * *

Particularly illuminating to the dis­
cussion of whether jury trials are avail­
able in discrimination cases is this court's 
recent decision of Curtis v. Loether, 415 
U.S. 189 (1974), where it was held that 
there is a jury trial right in actions 
brought under the fair housing law, Title 
VIII of the Civil Rights Act, 42 U.S.C. 
sec. 3612. * 11

10 Continued
The records of these cases indicate no 
unusual difficulties encountered as a re­
sult of submitting the issues to the jury.
11
Section 3612 provides:

The Court may grant as relief, 
as it deems appropriate, any 
permanent or temporary injunct­
ion, temporary restraining 
order or other orders, and may 
award to the plaintiff actual 
damages and not more than 
$1,000.00 punitive damages, 
together with court costs and 
a reasonable attorney's fee.

116



Petitioner there argued that the 
Seventh Amendment is inapplicable to new 
causes of action created by Congressional 
enactment. Citing Dairy Queen, Inc, v. 
Wood, Hepner v. United States, and other 
cases referred to herein^ the Court reject­
ed that argument. "Whatever doubt may have 
existed should now be dispelled. The 
Seventh Amendment does apply to actions 
enforcing statutory rights, and requires 
a jury trial upon demand, if the statute 
creates legal rights and remedies, enforce­
able in an action for damages in the ordi­
nary courts of law." 415 U.S. at 194.

Like petitioner here, petitioner in 
that case invoked the authority of 
National Labor Relations Board v. Jones 
& Laughlin Steel Corp'oration^ 301 U.S. 1
(1937). The Court held that, "Jones & 
Laughlin merely stands for the proposition 
that the Seventh Amendment is generally 
inapplicable in administrative proceedings, 
where jury trials would be incompatible 
with the whole concept of administrative 
adjudication and would substantially inter­
fere with the NLRB's role in the statutory 
scheme." 415 U.S. at 194.

Unquestionably, the Congressional 
purpose of making Title VII violations 
remediable in equitable proceedings, 
rather than actions at law, was to shield 
the victims of racial discrimination in

117



employment from possible racial prejudice 
by jurors. Comment, "The Right to Jury 
Trial under Title VII of the Civil Rights 
Act of 1964," 37 U.Chi.L,Rev. 167 (1969). 
in Curtis v. Loether, supra, the Court also 
recognized the possibility of juror pre­
judice, but held that it could not control 
the outcome of the decision. ”[T]hese con­
siderations are insufficient to overcome 
the clear command of the Seventh Amendment." 
The court pointed to the protection against 
the risk of prejudice afforded by the trial 
judge's power to direct a verdict, to grant 
judgment notwithstanding the verdict and to 
grant a new trial. 415 U.S. at 198. For­
tunately, in connection v/ith age discrimina­
tion cases there is no recognized pervasive 
prejudice against older workers by the 
community at large, comparable to the pre­
judice of potential jurors against minority 
workers. Among the values generally 
recognized by our society is a duty of 
respect and honor to older persons. There 
is no inconsistency between the Fifth 
Commandment, Exodus 20:12, and the Seventh 
Amendment. Thus, the problem of jury 
prejudice is not a consideration in an 
action under the Age Discrimination in 
Employment Act. It should be noted that in 
the present case it was the employee who

118



demanded the jury, and the corporate 
employer which wants to avoid a jury 
trial. -1-2

The Court in Curtis v. Loether con­
cluded that an action for damages under 
42 U.S.C. sec. 3612 is an action to enforce 
"legal rights" within the meaning of the 
Seventh Amendment cases, including Ross v. 
Bernhard and Dairy Queen, Inc, v. Wood. 
Further, the Court found that the statutory 
cause of action is analogous to a number of 
tort actions recognized at the common law, 
such as an action for breach of an inn­
keeper's duty not to refuse temporary lodg­
ing to travelers, and actions to redress 
defamation and intentional infliction of 
mental distress. 415 U.S. at 195-196, n.
10.

12
In this connection it is observed that the 
petitioner employer is supported in its 
efforts to deny respondent a jury trial by 
the Equal Employment Advisory Council, as 
amicus curiae. The Equal Employment 
Advisory Council's members are all employ­
ers, and the aim of the organization is 
to minimize liability of employers under 
various employment discrimination laws. 
(Equal Employment Advisory Council Br.
1- 2) .

119



Much of the reasoning of the Court in 
Curtis v. Loether applies equally to the 
present case. It is submitted that the re­
sult should be the same, and respondent 
should be allowed her right to trial by 
jury.

CONCLUSION
Bacause both the Age Discrimination in 

Employment Act itself and the Seventh Amend­
ment require a trial by jury in this case, 
the decision of the United States Court of 
Appeals for the Fourth Circuit ought to be 
affirmed.

Respectfully submitted,

Norman B. Smith
Smith, Patterson, Follin, 
Curtis & James 
704 Southeastern Bldg. 
Greensboro, N. C., 27401 
Tele.: 919-274-2992

Counsel for Respondent

120



I n the

(Cmtrt at tlrp Itutpfc S ta te s
October Term, 1976 

No. 76-1346

L orrilard, A  Division of Loews Theatres, Inc.,

— against—
Petitioner,

F rances P. P ons,
Respondent.

BRIEF FOR LEGAL SERVICES FOR THE 
ELDERLY POOR, AS A M IC U S  C U R IA E

J onathan A. W eiss
Legal Services for the Elderly Poor
2095 Broadway, Room 304
New York, New York 10023
(212) 595-1340

121





TABLE OF CONTENTS

PAGE
Statement of Interest ......................................................  1

Question Presented .......................................................... 2

Summary of Argument.......................................   2

A rgument—

P oint I—

The Act, in Creating a Cause of Action for the 
Legal Relief of Lost Wages, and Incorporating the 
Enforcement Provisions of the Fair Labor Stan­
dards Act, Contemplates the Litigant’s Right to
Demand a Jury T r ia l..................................................  3

A. Statutory Language ....      3

B. Incorporation of FLSA Enforcement Provi­
sions ..................................................................... 5

C. Title V II Distinguished ......................................  7

P oint II—

The Seventh Amendment of the United States Con­
stitution Entitles a Party to Demand a Jury Trial 
in an Action Raising the Legal Issue of Lost
Wages Under A D E A ..................................................  12

A. Constitutional Policy Favors Jury Trials in
Civil Actions .......................................................... 12

B. Right to Jury Trial Depends on Nature of Is­
sue to be Tried, Legal v. Equitable .................  13

123



11

C. Application of Ross Test ...................................  17

D. Legal and Equitable Issues Joined in One
Action ...................................................................... 21

Conclusion ................................................................................  22

Letters of Consent ................ ......... ............................... la, 2a

PAGE

T able or A uthorities

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .... 10
Adler v. Drudis, 30 Cal.2d 372, 182 P.2d 195 (1947) .... 19
Ashwander v. T.V.A., 297 U.S. 288 (1936) ...................5n.3

Beacon Theatres, Inc. v, Westover, 359 U.S. 500
(1959) ....................................................................... 13,15,21

Bereslavsky v. Caffey, 161 F.2d 499 (2d Cir., 1947) ....20n,23 
Bishop v. Jelleff Associates, 398 F.Supp. 579 (D.D.C.

1974) ....................................................................... 18,18 n.17
Braun v. Arneur <& Co., 254 N.Y. 514, 173 N.E. 845

(1930) ............................................................................18 n.18
Brennan v. Ace Hardware Corp., 495 F.2d 368 (8th 

Cir., 1974) .........................................................................  17

Capital Traction Co. v. Hof, 174 U.S. 1 (1899) .......14n.l4
Chilton v. National Cash Register Corp., 370 F.Supp.

660 (S.D. Oh. 1974) ...................................................... : 15
Cleverly v. Western Electric Co., 69 F.R.D. 348 (W.D.

Md. 1975) .........................................................................  15
Combes v. Griffin Television, Inc., 421 F.Supp. 841

(W.D. Okla. 1976) .......................................................... 18
Curtis v. Loether, 415 U.S. 189 (1974) ....11 n.10,13,13 n.13, 

15,16,16 n.15,17 n.16,18,19, 20 n.21, 21

Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962) ...........13,
13 n.13,15,21124



Ill

Economy Swimming Pool Co. v. Freeling, 236 Ark,
888, 370 S.W.2.1 438 (1963) ..........................................  19

Emmems v. Elderton, 4 H.L. Cas. 625, 10 Eng. Rep.
606 (1853) ........................................................................ 17

Equal Employment Op Com’n v. Detroit Edison Co.,
515 F.2d 301 (6th Cir., 1975) ........................................ 8n.8

Fleitmann v, Welsbach Street Lighting Co., 240 U.S.
27 (1916) ........................................................13 n.13,16 n.15

Hannon v. Continental National Bank, 427 F.Supp. 215
(D. Colo. 1977) ............................................................... 7 n,5

Hepnerv. United States, 213 U.S. 103 (1909) ...........13n.l3,
15,16 n.15

Hodgson v. Stewart In-Fra-Red Commissary, Inc., 370 
F.Supp. 503 (E.D. Pa. 1973) ...................................... 6n.4

Jacob v. New York City, 315 U.S. 752 (1942) ................. 13

Katchen v. Landy, 382 U.S. 323 (1966) ........................  15

Laugesen v. Anaconda, 510 F.2d 307 (6th Cir., 1975) .... 17 
Lewis v. Times Publishing Co., 185 F.2d 457 (5th Cir., 

1950) .................................... :...........................................  6

Meyerson v. Hurlbut, 68 App. D.C. 360, 98 F.2d 232
(1938) cert, denied, 305 U.S. 610 (1938) .............18n.l8

Miller v. Robertson, 266 U.S. 243 (1924) ........................  19
Mitchell v. City Inc. Co., 273 F.2d 560 (5th Cir., 1960) ..6n.4 
Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288
(I960) ......................................................................6n .4 ,16 n.15
Morelock v. Nat’l Cash Register Corp., 546 F.2d 682 

(6th Cir., 1976) ................................................7 n.5. 21 n.25

PAGE

125



IV

N.L.R.B. v. Jones & Lcmghlin Steel Corp., 301 TJ.S. 1 
(1937) ...........................................................................16 n,15

Ochoa, v. American Oil Co., 338 F.Supp. 914 (S.D.
Texas 1972) ................................................................. 17 n.16

Olearchick v. American Steel Foundries, 73 F.Supp.
273 (W.D., Pa. 1947) ..................................................... 6,10

Parsons v. Bedford, 3 Pet. 433 (1830) ...................4-5,13,14
Pierce v. Tennessee Coal, Iron and Railroad Co., 173

TJ.S. 1 (1899) ................................................................... 17
Polstorff v. Fletcher, 430 F. Supp. 592 (N.D. Ala.

1977) ..................................................................................7 u.5
Porter v. Warner Holding Co., 328 U.S. 395 

(1946) ..................................................................... 16 n.15,19

Rogers v. Loether, 467 F.2d 1110 (7th. Cir., 1972) .......13, 20
Ross v. Bernhard, 396 TJ.S. 531 (1970) ...............11 n. 11,15

Scott v. Neely, 140 TJ.S. 106 (1891) ................................ 13, 21
Siler v. Louisville & Nashville R.R. Co., 231 TJ.S. 175

(1909) ............................................................................... 5 n.3
Simler v. Conner, 372 TJ.S. 221 (1963) ............................. 13
Smyth, Sales, Inc. v. Petroleum Heat & Power Co., Inc.,

141 F.2d 41 (3rd Cir., 1944) .................................. ...,20n.22
Sylvania Industrial Corp. v. Lilienfeld’s Estate, 132 

F.2d 887 (4th Cir., 1943) ..............................................  19

Taylor v. Tulsa Tribune Co., 136 F.2d 981 (10th Cir.,
1943) ..................................................        17

Thermo-Stitch, Inc. v. Chemi-Cord Processing Corp.,
294 F.2d 486 (5th Cir., 1961) ........................................  21

Transmirra Products Corp. v. Monsanto Chemical Co.,
27 F.E.D. 482 (S.D.N.Y. 1961) ....................................20n.24

PAGE

126



V

United States v. Campos-Serrano, 404 U.S. 293 (1971) 4
United States v. Wonson, 1 Gall. 5, 28 Fed. Cas. 745 

(1812) ............................................................................14 n.14

PAGE

Washington Market Co. v. Hoffman, 101 U.S. 112
(1879) ....................... ........................................................ 4

Wirts v. Jones, 340 F.2d 901 (5th Cir., 1965) ...........6n.4, 6
Wirts v. Turner, 330 F.2d 11 (7th Cir., 1964) ...............6n.4

Statutes:

Civil Rights Act of 1964, PL. 88-352, § 715 ...................7 n.6

U.S. Const., amend. V II ..............................................13 n.12

United States Code

29 U.S.C. § 201 ............

29 U.S.C. §§ 216, 217 ..

29 U.S.C. § 621 .............

29 U.S.C. § 623 ............

29 U.S.C. § 626 ............

42 U.S.C. § 2000 e-5(g)

....................................... 5 n.4

4 n.2, 5, 5 n.4, 6, 7, 9,16 n.15

....................................... 3 n.l

.......................................  18

................3, 4, 5, 9,17,18, 21

................................... 7, 8 n.7

Other A uthorities

Note, Congressional Provision for Hon-Jury Trial 
Amendment, 83 Yale L.J. 401 (1973) .......16 n.15, 20 n.20

10113 Cong. Rec. 31255 (1967) ........................

4 Corbin, Contracts §958 (1964 ed.) ...........

5 Corbin, Contracts §§1102, 1107 (1964 ed.)
....  17

19 n.19

127



VI

Note, Developments in the Law—Employment Dis­
crimination and Title VII of the Civil Rights Act of 
19 64  84 Harv. L. Rev. 1109 (1971) —.8 n.8,11 n.10,11 n .ll

Note, Fair Labor Standards Act d  Trial by Jury, 65 
Colnm. L. Rev. 514 (1965)...........................................6n,4

5 Moore Federal Practice, § 38.11(7) (1946) ................. 14

5 Moore Federal Practice, § 38.21 (1977) ....................... 4

4 Pomeroy, Equity Jurisprudence, (5th ed., 1941) .......  4

The Federalist, No. 83 .................................................. 14n.l4

Comment, The Right to a Jury Trial Under Title VII 
of the Civil Rights Act of 1964 , 37 U. Ohio L.Rev.
167 (1969) ...................................................  8 n.8

The Uncertain Future of the Seventh Amendment, 81 
Yale L.J. 112 (1974)........................ .........................11 n .ll

1964 TT.S. Code, Cong, and Administrative News
2415 ............................................... ............... ....................  9

1964 U.S. Code, Cong, and Administrative News
7393 ............................................... ..................................10 n.9

1967 U.S. Code, Cong, and Administrative News
2214 ....................... _......... ................................................ 7,12

11 Williston, Contracts § 1358 (3d ed. 1968) ............... 17

12 Williston, Contracts §1455 (1970 ed.) ...................19n.l9

9 Wright and Miller, Federal Practice and Procedure 
§2302 (1971)

PAGE

128
14



I n  t h e

Supreme (ta rt of the lotted States
October Term, 1976 

No. 76-1346

L orrilard, A Division o f Loews Theatres, Inc.,

•—against—
Petitioner,

F rances P. P ons,
Respondent.

BRIEF FOR LEGAL SERVICES FOR THE 
ELDERLY POOR, AS A M I C U S  C U R I A E

Statement of Interest

Legal Services for the Elderly Poor is funded by Com­
munity Action for Legal Services and the United States 
Department of Health, Education, and Welfare to provide 
assistance on research and litigation to lawyers dealing 
with the problems of the elderly. Legal Services for the 
Elderly Poor is particularly concerned with discrimination 
in employment against older persons, which is almost uni­
versal in the United States, and which denies approxi­
mately ten per cent of this country’s population the op­
portunity to earn a living and to contribute to society by 
continuing to work.

Legal Services for the Elderly Poor has participated as 
co-counsel or amicus in numerous cases before this Court

129



2

involving the elderly including Graham v. Richardson, 403 
U.S. 365 (1971), Allied Chemical Workers v. Pittsburgh 
Plate Glass, 404 U.S. 107 (1971), Ortwein v. Schwab, 410 
U.S. 656, reh. den., 411 U.S. 922 (1973), and Massachusetts 
Board of Retirement v. Murgia, 427 U.S. 307 (1976).

All parties have consented to the filing of this amicus 
brief.

The consent letters are annexed.

Question Presented

Does a party have the right to demand a jury trial in an 
action brought under Age Discrimination in Employment 
Act of 1967, where the relief sought is lost wages!

Summary of Argument

The age Discrimination in Employment Act of 1967 
(hereinafter the “Act” or “ ADEA” ) 29 U.S.C. §§ 621 et 
seq., authorizes private individuals to seek “ legal or equita­
ble relief” through civil action in the District Courts 29 
U.S.C. § 626(c). The Act identifies lost wages as one form 
of legal relief. Traditionally such legal remedies predicate 
a jury trial.

The enforcement provisions of the Act follow those of 
the Pair Labor Standards Act (hereinafter FLSA) 29 
U.S.C. §§216 & 217. Section 216(b) which addresses the 
private right of action for unpaid earnings, consistently 
has been read to provide a right to jury trial.

Analogies between the availability of trial by jury in 
ADEA and in Title VII of the Civil Rights Act of 1964 
are inapposite. Title VII differs significantly from ADEA 
in statutory language, in Congressional intent as evidenced

130



3

by the legislative history, and by the underlying policy 
justifying the legislation itself.

The right to demand a jury trial in civil actions occupies 
a favored constitutional position. If a cause of action in­
cludes a legal issue, compelling the determination of legal 
rights and remedies, then the Seventh Amendment governs. 
The claim for lost wages under ADEA represents a claim 
for legal relief, and is analogous to an action at common 
law. The joinder of this legal claim with one or more 
claims for equitable relief arising out of the same factual 
circumstances does not defeat the right to a jury trial un­
der the Seventh Amendment.

A R G U M E N T  

POINT I

The Act, in Creating a Cause of Action for the Legal 
Relief of Lost Wages, and Incorporating the Enforce­
ment Provisions of the Fair Labor Standards Act, Con­
templates the Litigant’s Right to Demand a Jury Trial.

A. Statutory Language

Section 7(c) of the Act, 29 U.S.C. § 626(c), authorizes 
aggrieved individuals to seek “ such legal or equitable re­
lief as will effectuate the purposes of this chapter” 1 
through a civil action in the federal District Courts. Sec- 1

1 The Congressional statement of purpose is found in Section 2 
of the Act, 29 U.S.C. § 621:

“ • . . [O jlder workers find themselves disadvantaged in their 
efforts to retain employment, . . . ;

the setting of arbitrary age limits regardless of potential for  
job performance has become a common practice, . . . ;

It  is therefore the purpose of this chapter to promote em­
ployment of older persons based on their ability rather than 
age; . . . 29 U.S.C. § 6 2 1 (a )(1 ), (2 ), & (b ).

131



4

tion 7(b) 29 U.S.C. 626(b) confers jurisdiction on the 
federal courts to grant the appropriate “ legal or equitable 
relief” , and in the same sentence spells out what that re­
lief might b e : “ . . . including without limitation judgments 
compelling employment, reinstatement, or promotion, or 
enforcing the liability of amounts deemed to be unpaid 
minim um wages or unpaid overtime compensation under 
this section.” (emphasis added).2

In identifying forms of relief, Congress cited specific 
remedies as examples of either legal or equitable relief. 
It is well settled that judgments compelling specific per­
formance are equitable in nature. 4 Pomeroy’s Equity 
Jurisprudence (5th ed 1941) § 1400, 5 Moore, Federal Prac­
tice 1138.21 (1977).” [A] statute ought . . .  to be so con­
strued that, if it can be prevented, no clause, sentence, or 
word shall be superfluous, void, or insignificant” Washing­
ton Market Co. v. Hoffman, 101 U.S. 112, 115-16 (1879), 
quoted in U.S. v. Campos-Serrano, 404 U.S. 293, 301 n.14 
(1971). I f  the phrase “ legal relief” is to be rendered mean­
ingful, it must be interpreted to include monetary awards 
for lost earnings, the “ amounts deemed to be unpaid . . 
of the Act.

Congress thus has created an action for parties seeking 
the legal relief of lost or unpaid wages. Such an action, in 
which the courts administer a legal remedy, traditionally 
calls for a jury trial. The Seventh Amendment, establish­
ing the right to a jury trial in suits at common law, has 
long been recognized as applying to actions in which legal 
rights and remedies, as opposed to merely equitable ones, 
were being determined Parsons v. Bedford, 3 Pet. 433, 447

2 “ amounts deemed to be unpaid minimum wages or unpaid 
overtime compensation” refers to the express incorporation of 
§§ 216 & 217 of the Fair Labor Standards Act.

132



5

(1830).3 Congress, in specifying that legal as well as 
equitable relief would be available, must have intended 
suits in which legal rights and remedies were being deter­
mined and juries therefore required. The Act, by its lan­
guage, has extended to litigants seeking lost wages the 
right to a jury trial.

B. Incorporation of FLSA Enforcement Provisions

Section 7 (b) of the Act, 29 U.S.C. § 626(b), in discussing 
the Act’s enforcement scheme, expressly incorporates re­
lated provisions of the Fair Labor Standards Act, 29 U.S.C. 
§§ 216(b), 216(c), 217. Lost wages, the legal issue on which 
respondent has demanded a jury trial, are “deemed to be 
unpaid minimum wages or unpaid overtime compensation 
for purposes of Sections 216 & 217 of this title.” 29 U.S.C. 
§ 626(b) In the instant case, respondent initiated her ac­
tion for lost wages as a private party without any inter­
cession by the Secretary. The relevant FLSA provision is 
29 U.S.C. § 216(b), in which individual employees may 
maintain an action for unpaid minimum wages or unpaid 
overtime compensation.4

3 The statutory argument is advanced in the context of a Con­
stitution that commands the right to ju ry  trials in civil actions 
at law. W e do not attempt to interpret the Seventh Amendment 
here, but simply recognize that statutory language was chosen 
against a background of accepted constitutional practice. The stat­
utory argument is set forth independent of and prior to Constitu­
tional analysis, since the Court will refuse to pass on constitutional 
issues if other grounds are present on which a case can be decided 
A shw ander  v. T .V .A ., 297 U.S. 288, 347 (1936) (Brandeis, J. Con­
curring), Siler v. Louisville & N ashville R .B . Co., 213 U S  175 
(1909).

4 The Fair Labor Standards Act, 29 U.S.C. §§201 et seq., pro­
hibiting violations o f minimum wage and maximum hours provi­
sions, enforces compliance by both equitable and legal remedies; 
29 U.S.C. § 216(b) confers on the employee a right of action against 
his employer for unpaid minimum wages or unpaid overtime corn-

133



6

Courts have consistently recognized the right to a jury 
trial in employee actions brought under § 216(b) for with­
held wages or overtime compensation. Wirtz v. Jones, 340 
F.2d 901 (5th Cir. 1965); Lewis v. Times Publishing Co., 185 
F.2d 457 (5th Cir. 1950); Olearchick v. American Steel 
Foundries, 73 F.Supp. 273 (W.D. Pa. 1947). The decisions 
in Jones, Times Publishing, & Olearchick, precede Congres­
sional passage of ADEA, and the explicit holding that ag­
grieved employees were entitled to a jury trial in their suits 
for back wages has never been denied in the federal courts. 
Congress, in incorporating § 216, and implicitly this line of 
cases, into ADEA made certain the resultant availability 
of juries.

pensation, and for liquidated damages; 29 U.S.C. § 216(c) permits 
the employee to waive his rights under § 216(b ), and to request 
that the Secretary of Labor bring an action to recover deficiencies 
in compensation after prior judicial decisions have finally settled 
all issues of law; 29 U.S.C. § 217 provides for a suit by the Secre­
tary to enjoin violations of the minimum working standards and 
to restrain discriminatory discharges resulting from employee par­
ticipation in enforcement proceedings. The action may include a 
plea by the Secretary for restraint of the withholding of unpaid 
compensation.

Courts have favored the right to jury trial in § 216(c) actions, 
M itchell v. C ity Ice  Co., 273 F.2d 560 (5th Cir. I960), W irtz  v. 
Turner, 330 F.2d 11 (7th Cir. 1964), and have denied the right 
to a ju ry  trial in § 217 actions W irtz  v. Jones, 340 F.2d 901 (5th 
Cir. 1965), H odgson  v. Stew art In-Fra-Tted Com m issary In c., 370 
F. Supp. 503 (E.D. Pa. 1973). In M itchell v. R obert D e M ario 
Jew elry  Inc., 361 U.S. 288 (1960) this Court held that the District 
Court had jurisdiction-in equity in an action brought by the Secre­
tary under § 217 to include an order to reimburse back wages along 
with an order for reinstatement. The decision clearly supports the 
holding in W irtz  v. Jones and H odgson  v. S tew art In -F ra -R ed  
Com missary Inc., supra.

All of the above decisions address actions brought by the Secre­
tary in his capacity of service to the public interest. They raise 
issues concerning the F L SA  which will not be addressed here. 
See Note F air Labor Standards A ct  & Trial by Jury, 65 Colum. 
L.Rev. 514 (1965).

The instant action, brought by respondent as a possible litigant, 
is linked to the ‘private right of action’ provision of F L SA  i e 
§ 676(b).

134



7

During the course of Senate consideration of ADEA, 
Senator Javits remarked on the floor that in determining 
liability under the Act, “ [a] jury will answer yes or no.” 
113 Cong. Rec. 31255 (1967). This statement that juries 
would hear ADEA cases raised no objections or inquiries 
on the Senate floor.

Accordingly it is respectfully submitted that the incor­
poration of § 216(h) is susceptible of no interpretation 
other than that Congress intended and created the right to 
demand a jury trial for all individual employees seeking 
the relief of lost wages under ADEA.

C. Title VII Distinguished

Attempts have been made by some lower courts5 to anal­
ogize the enforcement procedures of ADEA to those of 
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e- 
5(g). ADEA is in one sense a legislative offspring of Title 
VII,6 and the two Acts call for virtually identical pro­
hibitory procedures. But the statutory language on en­
forcement, the legislative history addressing modes of 
trial, and the underlying policy considerations of 42 IT.S.C. 
§ 2000e-5(g) are significantly different and must be distin­
guished from corresponding factors in ADEA.

In §2000e-5(g), Congress selected language strongly 
implying that available relief is exclusively of an equitable

5 In H annon  v. Continental N ational Bank, 427 F.Supp. 215 
(D. Colorado, 1977) the Court relies heavily on an affiliation in 
remedial provisions and purposes between A D E A  and Title V II. 
In M orelock  v. N .C.B . C ory., 546 E.2d 682 (6th Cir. 1976) and 
P olstorff v. F letch er , 430 F.Supp. 592 (N.D. Ala. 1977) the court 
assimilates the purpose and purportedly broad remedial language 
of A D E A  to that of Title V II.

6 Section 715 of the Civil Rights A ct of 1964 (P L  88-352) di­
rected the Secretary o f Labor to make a study of the problem of 
age discrimination in employment. H.R. Rep. No. 805, 90th Cong., 
1st Sess. rep rin ted  in  [1967] U.S. Code Cong. & Ad. News 2214.

135



8

nature, to be awarded at the discretion of the court.7 An 
order compelling reinstatement or hiring may be “with or 
without back pay” . The provision that a court may issue 
injunctions or orders upon finding violations, and that the 
order may include reinstatement which may in turn be 
accompanied by back pay indicates the expectation that 
judicial discretion will be exercised in determining all 
forms of relief. After listing various specific forms of re­
lief, the sentence finishes with “ or any other equitable re­
lief as the court deems appropriate” (emphasis added). 
The construction doctrine of ejusdem generis leads to the 
conclusion that only equitable forms of relief are per­
mitted, and that discretionary awards of back pay were not 
intended as damage actions at common law that would trig­
ger a jury trial.8

7 The relevant text o f  § 2000e-5(g) is as follow s:
I f  the court finds that the respondent has intentionally en­

gaged in or is intentionally engaging in an unlawful employ­
ment practice charged in the complaint, the court may enjoin 
the respondent from engaging in such unlawful employment 
practice, and order such affirmative action as may be appro­
priate, which may include, but is not limited to, reinstate­
ment or hiring of employees, with or without back pay (pay­
able by the employer, employment agency, or labor organiza­
tion, as the case may be, responsible for the unlawful employ­
ment practice), or any other equitable relief as the court 
deems appropriate. . . .

8 See Comment, The R ight to J u ry  Trial U nder T itle V I I  o f  the 
Civil R ights A c t  o f  1964, 37 U.Ohio L. Rev. 167 (1969) : “ No­
where, so far, has it been argued seriously that Congress intended 
to provide for jury trials. . . . The language . . . would suggest 
that the statute contemplates that the judge without a jury  will 
determine all appropriate relief in a single order.”  Id . at 169-70. 
A ccord , D evelopm ents in the Law— E m ploym ent D iscrim ination  & 
Title V I I  o f  the Civil R ights A c t  o f  1964, 84 Harv.L.Rev. 1109, 
1264-69 (1971). Cf. Equal E m ploym ent Op. Com’n  v. D etro it  
Edison Co., 515 F.2d 301, 308-309 (6th Cir. 1975), applying the 
doctrine of ejusdem  generis in holding that punitive damages, as 
legal relief, are not awardable under Title V II.

136



9

This reading of the statutory language is reinforced by 
the legislative history of Title VII. Opponents of the Act 
criticized the prospect of “government by injunction,” 
fearing that suits in equity would strip defendants of many 
constitutional protections including the right to a jury 
trial. See E.g. H.R. Rep. No. 914, 88th Cong. 2nd Sess., 
reprinted in [1964] U.S. Code Cong. & Ad. News 2415. 
During the floor debates, Senator Case, who was a moving 
force behind Title VII, and Senator Ervin engaged in the 
following colloquy:

Mr. Ervin. Under Title VII, an order can be entered 
ordering a man to pay back wages to a person who had 
never done a day’s work for him. The amount of back 
wages may largely exceed the jurisdictional amount re­
quiring a jury trial in common cases under the Consti­
tution. Title VII contains no requirement for a jury 
trial under any circumstances!

Mr. Case. So far as the Act itself is concerned, there 
is no provision for jury trial. Of course, whether a 
jury trial would be required would depend upon the 
Supreme Court in developing further its decision of 
the day before yesterday in the Barnett case. A jury 
trial might be provided if the penalty were heavy 
enough.

Mr. Ervin. No jury trial is provided.
Mr. Case. No jury trial is provided under the terms 

of this section.

110 Cong. Rec. 7255 (1964).

The enforcement provisions of ADEA include none of 
this clear-cut opposition to jury trials but its recognition as 
mentioned above. The provisions of § 216(b), incorporated 
into § 626(b), do not allow for the type of equitable dis­
cretion available under Title V II: any violator “shall be 
liable to the employee or employees affected in the amount

137



10

of their unpaid minimum wages or their unpaid overtime 
compensation . . (emphasis added). Once liability has 
been established, the dispensing of relief in the form of 
monetary damages occurs automatically just as it would in 
a common law contract action for damages. See e.g. Olear- 
chicJc v. American Steel Foundries, 73 F.Supp. 273 (W.D. 
Pa. 1947). The contrast is there clearly drawn, for as this 
Court stated, in Title VII actions: “ . . . back pay is not an 
automatic or mandatory remedy; like all other remedies 
under the Act, it is one which the courts ‘may’ invoke.” 
Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975).

In the course of Senate consideration of ADEA, Senator 
Dominick raised the issue of possible conflict between the 
administration of Title VII and ADEA. Senator Javits in 
his reply stated that the two Acts “ will operate completely 
independently of each other, as will the enforcement pro­
cedures,” 113 Cong. Rec. 31255 (1967). Congress was not 
intending to duplicate the enforcement provisions of Title 
VII, simply because it had a new piece of legislation which 
also dealt with discrimination in employment.

Underlying these crucial differences in statutory lan­
guage and legislative history, Title VII and ADEA ap­
proach the problems of enforcement from different 
conceptual bases. Title VII is part of the 1964 Civil Rights 
Act, which called for extraordinary action in response to 
a problem of historic and Constitutional magnitude. The 
House Judiciary Committee, in its General Statement as it 
reported the Bill out, stressed that one hundred years after 
formal emancipation, blacks were still denied “ the rights, 
privileges and opportunities which are considered to be, 
and must be, the birthright of all citizens.”9 The Congres­

9 H.R. Rep. No. 914, 88th Cong., 2nd Sess., rep rin ted  in  [1964] 
U.S. Code Cong. & Ad. News, 7393. The General Statement re­
fers further to the Bill resting upon the authority of “ [a] number

138



11

sional response was an attack on discrimination in a vari­
ety of settings, of which employment was one. Within the 
area of employment Congress created a whole new adminis­
trative agency, not responsible to any pre-existing Cabinet- 
level departments. Congress’ decision to create an action 
for employment discrimination based on race, triable only 
to a judge, may reflect its fears of jury bias against plain­
tiff claims in such suits10 11 or its sense of the urgency of the 
problem which the delay attendant to a jury trial would 
only exacerbate.11 Whatever its motivations, Congress in 
creating the Equal Employment Opportunity Commission 
(EEOC) and establishing the right to sue as accruing un­
der this totally new agency, was implementing what it 
considered to be an extraordinary remedy.

ADEA, in contrast, is a more straightforward and ‘ordi­
nary’ piece of legislation and is administratively tied to 
the Department of Labor. The purpose of the legislation, 
as reported out by the House Education and Labor Com­
mittee, is stated simply: “ It is the purpose of H.R. 13054 
to promote the employment of older workers based on their

of provisions o f the Constitution o f the United S t a t e s a n d  to the 
urgency of a national need which requires national legislation to 
meet it. Id. at 2393.

10 Defendants in the South apparently agree that there may be 
prejudice on a jury, and have sought to take advantage of it. The 
great majority of ju ry  demands in Title V II  cases have come from 
southern defendants in cases which racial discrimination was 
alleged. D evelopm ents in  the Law, supra, note 7 at 1264 n. 371. 
See also Comment supra, note 7 at 167. Of. Curtis v. L oether, 415 
U.S. 189, 191-192 (1974), discussing the similar concerns of sup­
porters in Congress with regard to Section 812 o f the Civil Rights 
Act of 1968.

11 D evelopm ents in  the Law, supra, note 7 at 1265. See also 
Note, Ross v. B ern h ard : The U ncertain F u tu re  o f  the Seventh  
Am endm ent, 81 Yale L.J.112, 123-26 (1974). On the particular 
urgency of the race discrimination issue, see [1964] U.S. Code 
Cong. & Ad. News supra, note 9.

139



12

ability.” H.R. Rep. No. 805, 90th Cong. 1st Sess., reprinted 
in [1967] U.S. Code Cong. & Admin. News 2214. No men­
tion is made of historical reverberations. The Act is in­
tended to deal solely with problems of employment, and its 
enforcement mechanism is derived from already existing 
procedures within the Department of Labor not the spe­
cially created EEOC. Basically this is an Act addressing 
the problem of discharged or unhired older employees: it 
relies on long-standing enforcement procedures operating 
within an established Cabinet-level department. In pre­
scribing a remedy, Congress had no reason to reach for 
the extraordinary. When legal claims and issues are being 
reviewed in court, a jury of one’s peers, the collective judg­
ment of twelve men and women arrived at through open- 
minded discussion, is the preferred means of reaching a 
verdict.

POINT II
The Seventh Amendment of the United States Con­

stitution Entitles a Party to Demand a Jury Trial in an 
Action Raising the Legal Issue of Lost Wages Under 
ADEA.

A. Constitutional Policy Favors Jury Trials in Civil Actions

In the preceding section, we have demonstrated that the 
Act in its choice of language and its enforcement provi­
sions contemplated the right to a jury trial for parties in­
volved in a claim to lost wages. Assuming, arguendo, that 
the Act does not reveal a specific Congressional intention 
and language on the jury trial issue, we turn to the Consti­
tutional question of whether a right to jury trial exists in 
this context.

140

“ The right of jury trial in civil cases at common law is a 
basic and fundamental feature of our system of federal



13

jurisprudence . . , [It] should he jealously guarded by the 
courts.” Jacob v. New York City, 315 U.S. 752 (1942). The 
command of the Seventh Amendment12 has been extended 
to cover all actions in which legal rights and remedies, in­
cluding those created by statute, are being determined. 
Parsons v. Bedford, 3 Pet. 433, 447 (1830), Curtis v. Loe- 
ther, 415 U.S. 189, 193 (1974).13 The Amendment in ad­
dressing itself directly and specifically to the federal 
courts, calls for a uniformity of protection without defer­
ence to Executive or Legislative encroachment. The fed­
eral policy favoring jury trials has been deemed “ of 
historic and continuing strength.”  Simler v. Conner, 372 
U.S. 221, 222 (1963). See Parsons v. Bedford supra, Scott 
v. Neely, 140 U.S. 106 (1891), Beacon Theatres, Inc. v. 
Westover, 359 U.S. 500 (1959), Dairy Queen, Inc. v. Wood, 
369 U.S. 469 (1962).

B. Right to Jury Trial Depends on Nature of Issue to 
be Tried, Legal v. Equitable

When Congress, in creating new rights of action, fails to 
provide expressly for the mode for trial, the right of action 
should be analogized to its historical counterpart at law or 
in equity, in order to determine whether a right to jury 
trial exists. “ The proposition that we should look to his­
tory for guidance is well settled.”  Rogers v. Loether, 467 
F.2d 1110,1116 n.20 (7th Cir. 1972), aff’d Curtis v. Loether,

12 “In Suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be pre­
served, and no fact tried by a jury, shall be otherwise reexamined 
in any Court of the United States, than according to the rules of 
the common law” U.S. Const., amend. VII.

13 This Court, in Curtis v. Loether, cites a number of instances 
in which it has found the Amendment applicable to causes of ac­
tion based on statutes. Eg. Dairy Queen Inc. v. Wood, 369 U.S. 
469, 477 (1962) (trademark laws); Hepner v. United States, 213 
U.S. 103, 115 (1909) (immigration laws); Fleitmann v. Welsbach 
Street Lighting Co., 240 U.S. 27 (1916) (antitrust laws).

141



14

415 U.S. 189 (1974). See 5 Moore Federal Practice H38.ll 
[7] (1946); 9 Wright & Miller, Federal Practice and Pro­
cedure § 2302 (1971).

The right to jury trial is preserved by the Seventh 
Amendment on the basis of the division that existed be­
tween suits at common law and suits in equity under Eng­
lish common law and chancery practice at the time the 
Amendment was adopted.14 The application of the Amend­
ment, however, has never been confined to those writs en­
forceable at common law in 1791. As Justice Story stated 
in Parsons v. Bedford, 3 Pet 433, 447 (1830),

“By common law, they meant what the constitution 
denominated in the third article ‘law’ ; not merely 
suits, which the common law recognized among its old 
and settled proceedings, but suits in which legal rights 
were to be ascertained and determined, in contradis­
tinction to those where equitable rights alone were 
recognized, and equitable remedies were adminis­
tered. . . .

In a just sense, the amendment, then, may well be 
construed to embrace all suits which are not of equity 
and admiralty jurisdiction, whatever may be the pecu­
liar form which they may assume to set the legal 
rights.

14 Justice Story stated, with reference to the Seventh Amend­
ment, in Ur'ted States v. Wonson, (cc defendant Mass. 1812) 1 
Gall. 5, 20, 28 Fed Cas 745, 750, N. 16, 750: “Beyond all question, 
the common law here alluded to is not the common law of any in­
dividual state, (for it probably differs in all), but it is the common 
law of England, the grand reservoir of all our jurisprudence.”

The Constitutional Convention had rejected a proposal securing 
the right to jury trial “as usual in civil cases,” because of the con­
trast and diversity in the several states concerning civil jury trial 
practices.

Capital Traction Co. v. Hof, 174 U.S, 1, 6 (1899), See The Fed­
eralist No. 83.

142



15

It is clear that the “legal rights” triable to a jury may 
arise from causes of action created by Congressional en­
actment. Curtis v. Loether, supra, Hepner v. United States, 
213 U.S. 103 (1909).

The focus of the Seventh Amendment question is 
whether a particular issue to be tried is of a legal or equi­
table nature, not whether the action as a whole should be 
characterized as legal or equitable Ross v. Bernhard, 396 
U.S. 531, 538 (1970), Dairy Queen Inc. v. Wood, 369 U.S. 
469 (1962), Beacon Theatres v. Westover, 359 U.S. 500 
(1959).

In Ross this Court advanced a three-pronged test for 
determining the “legal” nature of an issue, id. at 538 n.10. 
The three elements are (i) pre-merger custom, i.e. whether 
the claim on this issue would have sounded in law when 
there existed separate courts of law and equity; (ii) 
whether the remedy sought is a traditional form of relief 
offered in courts of law; (iii) whether a jury is capable of 
making the necessary factual determinations so as to ar­
rive at a verdict. These three elements have been applied 
subsequently by this and lower courts to civil causes of 
action created by federal statute. Curtis v. Loether, supra, 
Cleverly v. Western Electric Co., 69 F.R.D. 348 (W.D. Mo. 
1975), Chilton v. National Cash Register Co., 370 F. Supp. 
660 (S.D. Oh. 1974).

This Court’s recognition of an expressed Congressional 
intention to limit the right to jury trial based on a particu­
lar statutory scheme or purpose, does not support any 
similar limitation as regards ADEA. In Katchen v. Tandy, 
382 U.S. 323, 339-40 (1966) the court relied on the existence 
o f a “ specific statutory scheme contemplating the prompt 
trial of a disputed claim without the intervention of a 
jury” , to affirm the summary jurisdiction of bankruptcy 
court in certain bankruptcy proceedings. The ADEA, un-

143



16

like the Bankruptcy Act, contains no indication of a statu­
tory scheme limiting the right to a jury trial. The court 
would need some clear sign from Congress before acting 
to limit this right in any way. But Congress provided no 
such sign: indeed a reading of the statute and legislative 
history supports a contrary inference. Moreover, in light 
of the Constitutional policy favoring jury trials in civil 
actions, Congress must provide an adequate justification 
before the Court will permit the Seventh Amendment to be 
so confined.

“ . . . when Congress provides for enforcement of statu­
tory rights in an ordinary civil action in the district 
courts, where there is obviously no functional justifica­
tion for denying the jury trial right, a jury trial must 
be available if the action involves rights and remedies 
of the sort typically enforced in an action at law.” 
Curtis v. Loether, 415 U.S. 189, 195 (1974).15

15 N.L.R.B. v. Jones <& Laughlin Steel Corp., 301 U.S. 1, 48-49 
(1937) is not to the contrary. As interpreted by this Court in Cur­
tis v. Loether, supra at 194, Jones & Laughlin by denying the ap­
plicability of the Seventh Amendment to a statutory proceeding, 
“merely stands for the proposition that the Seventh Amendment is 
generally inapplicable in administrative proceedings, where jury 
trials would be incompatible with the whole concept of administra­
tive adjudication and would substantially interfere with the 
NLRB’s role in the statutory scheme.” Cf. Porter v. Warner Hold­
ing Co., 328 U.S. 395 (1946) (Emergency Price Control Act of 
1942, § 205(a)) and Mitchell v. Robert Be Mario Jewelry Inc., 361 
U.S. 288 (1960) (Fair Labor Standards Act §217), holding that 
the District Courts had equitable jurisdiction to award certain 
forms of monetary relief in actions initiated by the Authorized 
government official, i.e. Administrator or Secretary. In both in­
stances, the Court relied in large part on the justification that en­
forcement in equity was integral to the fulfillment of a publicly 
oriented statutory purpose. In both instances reliance on this 
statutory purpose was linked to a ‘public’ right of action, which 
could be initiated only by the Administrator or Secretary, not by 
a private litigant. But see Note, Congressional Provision for Non 
Jury Trial Amendment, 83 Yale L.J. 401, 405 (1973), citing the 
right to jury trial for causes of action in which the public at large 
is vitally interested, Hepner v. United States, 213 U.S. 103 (1909), 
Fleitmann v. Welshach Street Lighting Co., 240 U.S. 27 (1916).

144



17

In the absence of an express provision by Congress indicat­
ing the mode of trial, the right of action created by ADEA 
will be analyzed according to the Ross test.

C. Application of Ross Test

An action for back pay under 29 U.S.C. § 626 has a clear 
analogue in the legal right that is actionable upon breach 
of contract for wrongful discharge. According to the Eng­
lish common law, a servant wrongfully discharged may 
treat the contract as continuing and sue for breach by rea­
son of dismissal, Emmems v. Elderton, 4 H.L. Cas. 625, 
646, 10 Eng. Rep. 606, 615 (1853).16 Accord Pierce v. Ten­
nessee Coal, Iron & Railroad Co., 173 U.S. 1 (1899): 4 
Corbin, Contracts § 958 (1964). An identity between the 
monetary measure of damages for wrongful discharge at 
common law and the statutory measure called for under 
ADEA supports the historical analogy. The common law 
entitled the wrongfully discharged employee to what he 
would have received had there been no breach, less what he 
earned or might reasonably have earned in other employ­
ment of like nature Taylor v. Tulsa Tribune Co., 136 F.2d 
981, 983 (10th Cir. 1943), 11 Williston, Contracts § 1358 
(3rd ed. 1968), Corbin supra at § 958. The federal courts 
have accepted this approach to the measurement of dam­
ages in an action for lost wages under ADEA Laugesen v. 
Anaconda, 510 F.2d 307, 317-18 (6th Cir. 1975), Brennan v. 
Ace Hardware Corp., 495 F.2d 368, 373 (8th Cir. 1974), 16

16 For an extended discussion of historical analogies between a 
Title VII action for back pay by an unlawfully dismissed employee 
and various possible writs under the common law of contract, see 
Ochoa v. American Oil Co., 338 F.Supp. 914 (S.D. Texas 1972). 
This Court recognized in Curtis v. Loether, supra at 197, that the 
issue of the right to jury trial under Title VII back pay suits had 
not been squarely presented. So too that question is not presented 
by the instant case, in light of the substantial differences in legis­
lative language and history between ADEA and Title VII.

145



18
Bishop v. Jelleff Associates, 398 F.Supp. 579, 597 (D.D.C. 
1974), Combes v. Griffin Television, Inc., 421 F.Supp. 841, 
843-44 (W.D. Okla. 1976).17

In the alternative, a statutory action for back pay under 
ADEA should be analogized to the law of tort. The Act 
defines a new legal duty for employers, the duty not to dis­
charge an individual because of his age, 29 TJ.S.C. § 623(a) 
(1). Courts are authorized, under § 626(b) to compensate 
a plaintiff for the injury caused by defendant’s tortious 
act cf. Curtis v. Loether, 415 U.S. 189, 195 (1974). The dis­
charge of an employee, motivated by the age factor but 
justified publicly on the false ground that the employee is 
incompetent, is a form of defamation that is actionable.18

The statutory tort is also an amplification of the breach 
of contract for wrongful discharge action. The Act recog­
nizes the common law of contract and of tort, and enlarges 
them both. Non-performance of an agreement to continue 
employment because of age is, under the provisions of 
ADEA, a failure to fulfill a duty of conduct imposed by 
law. This violation of a legally imposed duty invades the 
employee’s interest in his reputation for capability as a 
worker. All of the above actions have a feel of facticity

17 In Bishop v. Jelleff Associates, 398 F.Supp. 579 (D.D.C. 1974) 
the Court spells out the formula, in terms consistent with Willis- 
ton’s formulation:

“Back pay is measured by the difference between the salary 
an employee would have received but for a violation of the Act 
and the salary actually received from other employment, less 
unemployment benefits. The relevant period for measuring 
back pay begins with the time of the loss of employment as a 
result of the violation and ends when the affected employee 
accepts or declines reinstatement.” 398 F. Supp. at 597.

18 Cf. Meyerson v. Hurlbut, 68 App. D.C. 360, 98 F.2d 232 
(1938), cert, denied, 305 U.S. 610, Braun v. Arneur & Co., 254 
N.Y. 514, 173 N.E. 845 (1930), declaring that false words prejudi­
cial in a pecuniary sense to a businessman or merchant were action­
able for defamation.

146



19

about them, for which a jury has traditionally been deemed 
peculiarly sensitive.

In addition to the historical analogies between a suit for 
lost wages under ADEA and actions at law, the remedy 
sought by respondent is of the sort traditionally offered in 
courts of law. The award of monetary relief need not al­
ways be designated “legal relief” , Curtis v. Loether, supra 
at 196: an award of actual or punitive damages is legal, 
but the remedy of restitution may be an equitable one. A 
significant distinction between damages and restitution lies 
in whether the injured party has a claim for uncompen­
sated performance.19 When the complaining party has per­
formed fully or in part, and seeks recovery of what he 
actually has rendered or its equivalent monetary value, the 
relief sought is restitution, see e.g. Economy Swimming 
Pool Co. v. Creeling, 236 Ark. 888, 891, 370 S.W.2d 438, 440
(1963); Sylvania Industrial Corp. v. Lilienf eld’s Estate, 132 
F.2d 887 (4th Cir. 1943). A  complaining party who sues 
for damages is seeking a monetary award for performance 
he did not complete, on the basis that he would have com­
pleted it if the defendant’s action had not in effect pre­
vented his performance see e.g. Adler v. Drudis, 30 Cal.2d 
372, 382, 182 P.2d 195, 201 (1947), Miller v. Robertson, 266 
IT.S. 243, 257 (1924). In an action for lost wages based on 
discriminatory discharge, the theory of restitution is not 
applicable. Respondent is not seeking compensation for 
labor previously performed from which petitioner has al­
ready benefited. The facts of this case are thus distin­
guishable from those of Porter v. Warner Holding Co., 328 
U.S. 395 (1946), where the Administrator sought compen­
sation for tenant overcharges, claiming in effect that defen­

19 See comparative discussion of restitution and damages as 
forms of relief in 5 Corbin, Contracts §§ 1102, 1107 (1964 ed.) 
For discussion of the remedy of restitution, see 12 Willison. Con- 
tracts § 1455 (1970 ed.).

147



20

dant had benefited already (and unjustly) from receipt 
of excess intake. That claim was for restitution: it sounded 
in equity without a right to jury trial. Respondent herein 
has no monetary claim for the value of any completed per­
formance: she seeks an award for what she would have 
received had she been allowed to render performance, 
which is the traditional damages award in actions at law.20

On the question of jury abilities and limitations, there 
are no practical obstacles to a jury’s determination of the 
issues presented in a discriminatory discharge action. As 
Justice, then Judge, Stevens stated in Rogers v. Loether,21 
regarding an analogous case of discriminatory refusal to 
rent “ Typically, the facts are not complex and decision 
turns on appraisals of credibility and motive. Certainly 
such matters are far more suitable for jury determination 
than complicated commercial issues that routinely arise in 
derivative and antitrust litigation.” Id. at 1118. Juries 
traditionally have been permitted to resolve factual issues, 
and apply facts to legal rules in actions for legal relief in­
volving fraud,22 infringement of patent,23 and private anti­
trust actions.24 There is no basis for assuming that they 
are not able to determine liability and compute a lost wages 
damages award in an action under ADEA.

20 See Note, Congressional Provision for Non Jury Trial, supra 
note 14, at 407-408.

21 467 F.2d 1110 (7th Cir. 1972) aff’d Curtis v. Loether, 415 U.S. 
189 (1974).

22 e.g. Smyth Sales Inc. v. Petroleum Heat & Power Co., Inc., 
141 F.2d 41 (3rd Cir. 1944).

23 e.g. Bereslavsky v. Caffey, 161 F.2d 499 (2nd Cir. 1947).
24 e.g. Transmirra Products Corp. v. Monsanto Chemical Co., 27 

F.R.D. 482 (S.D.N.Y. 1961).

148



21

D. Legal and Equitable Issues Joined in One Action

When legal and equitable claims are joined in one action, 
a claim that is basically legal does not lose its character as 
such because it is joined to a claim for equitable relief. 
Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959), 
Dairy Queen Inc. v. Wood, 369 U.S. 469 (1962), Scott v. 
Neely, 140 U.S. 106 (1891). Issues integral to the legal 
claim also may be relevant to the equitable claim. In such 
circumstances, a jury trial of the legal issues takes prece­
dence over any prior determination of equitable claims. 
Beacon Theatres, Inc. v. Westover, supra, at 510-511, 
Curtis v. Loether, 415 U.S. 189, 196 n .ll (1974).

Respondent in the instant action seeks both legal and 
equitable relief, as she is entitled to do under 29 U.S.G. 
§ 626(b) and 626(c). The question of whether her claim for 
lost wages is characterized as incidental to her claim for 
injunctive reinstatement is not relevant to the determina­
tion of her rights under the Seventh Amendment.

“It would make no difference if the equitable cause 
clearly outweighed the legal cause so that the basic 
issue of the case taken as a whole is equitable. As long 
as any legal cause is involved the jury rights it creates 
control. This is the teaching of Beacon Theatres,, as 
we construe it.”

Thermo-Stitch, Inc. v. Chemi-Cord Processing Corp., 294 
F.2d 486, 491 (5th Cir. 1961) cited with approval in Dairy 
Queen Inc., supra at 473 n.8.25 If a private action for lost

26 The Sixth Circuit, in Morelock v. N.C.R. Corp., 546 F.2d 682 
(1976), holds that an action under AREA seeking back pay, rein­
statement and injunctive relief is “essentially equitable in nature,” 
id. at 689 ; and finds no constitutional right to a jury trial on the 
issue of back pay. This decision is inconsistent under the holdings 
of Beacon Theatres and Dairy Queen.

149



22

wages under ADEA is triable to a jury upon timely de­
mand, then a private action seeking inter alia lost wages 
also must be protected by the Seventh Amendment.

CONCLUSION

For the reasons stated above, the decision of the court 
below should be affirmed.

J onathan A. W eiss
Legal Services for the Elderly Poor
2095 Broadway, Room 304
New York, New York 10023
(212) 595-1340

150



No. 76-1346

In  T h e

GJmrrt n f the H tttleh S taten
Oc to b er  T e r m , 1977

L o r il la r d , a  D iv is io n  o f  L o e w ’s T h e a t r e s , In c .,
Petitioner,

v.

F r a n c e s  P. Po n s ,
Respondent.

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

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL

R o ber t  E . W il l ia m s  
F r a n k  C. M orris , Jr . 

M c G u in e s s  & W il l ia m s  
1747 Pennsylvania Ave., N.W. 
Washington, D.C. 20006

151





TABLE OF CONTENTS
Page

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

STATEMENT OF THE CASE .................. ............... . 2

SUMMARY OF ARGUMENT ........................... ..... . 3

ARGUMENT ....... .......................... ..................... .......... . 5

I. The Language of the ADEA and Its Legislative 
History Indicate That Congress Did Not In­
tend To Afford Jury Trial In ADEA Lawsuits.. 5

II. The Seventh Amendment Is Not Applicable To
an ADEA Action For Reinstatement and Back­
pay ............ ....................................... ...... ............. . 10
A. Introduction—The Controlling Principles.... 10
B. The Equitable Nature of Reinstatement and

Accompanying Backpay Under the ADEA__ 11

CONCLUSION ............. ......... ...........................................  22

153



AUTHORITIES CITED
Cases: Page

Albemarle Paper Co. V. Moody, 422 U.S. 405, 10
FEP Cases 1181 (1975) __________ ____________ 12-13

Baltimore and Carolina Line, Inc. V. Redman, 295
U.S. 654 (1935) _________      10

Brennan V. Ace Hardware Corp., 495 F.2d 368
(8th Cir. 1974) ____       7

Burgett V. Cudahy Co., 361 F. Supp. 617 (D. Kan.
1973) _____________ ____________________ ____ -  7

Chilton V. National Cash Register, 370 F. Supp.
660, 7 FEP Cases 203 (S.D. Ohio 1974) ..... . 14

Curtis V. Loether, 415 U.S. 189 (1974)  .......10,14,16
Dimick V. Schiedt, 293 U.S. 474 (1935) ___ ____ 10
E.E.O.C. V. Detroit Edison Co., 515 F.2d 301, 10

FEP Cases 239 (6th Cir. 1975) ____________ __  15,16
Fellows V. Medford Corp., 431 F. Supp. 199, 14

FEP Cases 1156 (D. Ore. 1977) _______ _______  19
Flores V. Local 25, IBEW, 407 F. Supp. 218, 12

FEP Cases 185 (E.D.N.Y. 1976) ....... _..............  16
Goger V. H. K. Porter Co., 492 F.2d 13, 7 FEP

Cases 71 (3d Cir. 1974) ___ ______________ ____ 12
Hannon V. Continental National Bank, 427 F.

Supp. 215,14 FEP Cases 1364 (D. Colo. 1977) ..5,16,18,
19, 20, 21

Harkless V. Sweeney Independent School Dist., 427 
F.2d 319, 2 FEP Cases 926 (5th Cir. 1970), cert.
denied, 400 U.S. 991 (1971) _________ ____ _ 16

Hodgson V. First Federal Savings & Loan Ass’n,
455 F.2d 818, 4 FEP Cases 269 (5th Cir. 1972).. 12

Johnson V. Georgia Highway Express, Inc., 417
F.2d 1122, 2 FEP Cases 231 (5th Cir. 1969).... 15

Loo v. Gerarge, 374 F. Supp. 1338, 8 FEP Cases 31
(D. Hawaii 1974) ________ _________ ____ ___ 15

Looney v. Commercial Union Assurance Cos., 428 
F. Supp. 533, 14 FEP Cases 843 (E.D. Mich.
1977) .......... ......... ....... .................. ....4,14,16,17,18,19

Lynch V. Pan American Airways, 475 F.2d 764
(5th Cir. 1973) _______ ______________ ________ 16

(ii)

154



(iii)

Page
A U T H O R IT IE S  C IT E D — Continued

McClanahcm V. Mathews, 440 F.2d 320, 19 WH
Cases 1051 (6th Cir. 1971) ................................ - 15,20

McCrickard V. Acme Visible Records, Inc., 409 F.
Supp. 341, 13 FEP Cases 822 (W.D. Va. 1976)- 8

McFerren V. County Bd. of Educ., 455 F.2d 199
(6th Cir.), cert, denied, 407 U.S. 934 (1972).— 16

Morelock V. NCR Corp., 546 F.2d 682, 14 FEP
Cases 65 (6th Cir. 1976), pet. for reh. den. (May 
17,1977) pet. for cert, pending, No. 77-172..4,12,14,16,

17,18, 20, 21
Moses V. Falstaff Brewing Corp., 525 F.2d 92, 11

FEP Cases 828 (8th Cir. 1975) ........ ....... _.......  8
N.L.R.B. V. Jones & Laughlin Steel Corp., 301 U.S.

1 (1937) ___________________________________  15
O’Connell V. Ford Motor Co., 11 FEP Cases 1471

(E.D. Mich. 1975) ........ ............... ......... .... .........  12
Pernell V. Southall Realty, 416 U.S. 363 (1974).... 10
Platt v. Burroughs Corp., 424 F. Supp. 1329, 14

FEP Cases 1057 (E.D. Pa. 1976) ___________8,18,19
Polstorff v. Fletcher, 430 F. Supp. 592, 14 FEP

Cases 1638 (N.D. Ala. 1977) ______ 4,12,16,17,18, 21
Robinson V. LoriUard Corp., 444 F.2d 791, 3 FEP 

Cases 653 (4th Cir.), cert, dismissed under Rule
60, 404 U.S. 1006 (1971) ______ _____________  15,17

Rogers V. Exxon Research and Engineering Co.,
404 F. Supp. 324 (D. N.J. 1976), rev’d & re­
manded, 550 F.2d 834, 14 FEP Cases 518 (3d 
Cir. 1977), pet. for cert, pending, No. 76-1451..7, 9,19

Ross V. Bernhard, 396 U.S. 531 (1970) ....... ....... . 4,10
Sant V. Mack Trucks, Inc., 424 F. Supp. 621, 13

FEP Cases 854 (N.D. Cal. 1976) _____________  14,19
Slack V. Havens, 522 F.2d 1091, 11 FEP Cases 27

(9th Cir. 1975) _____________ ________ ______ _ 15, 20
Slocum V. New York Life Ins. Co., 228 U.S. 364

(1913) ____ ___ ___ _________ ___ _____ _______  10
Smith V. Hampton Training School, 360 F.2d 577, 9

FEP Cases 1092 (4th Cir. 1966) (en banc) ___  16

155



(iv)

Page

Sullivan V. Wirtz, 359 F.2d 426, 17 WH 284 (5th

A U T H O R IT IE S  C IT E D — Continued

Cir.), cert, denied, 385 U.S. 852 (1966) ______  20
Wirtz v. Jones, 340 F.2d 901, 16 WH 771 (5th Cir.

1965) ............. ........ .... ........ ...... -.......... ............ -  20

Statutes:
Age Discrimination in Employment Act of 1967,

as amended, 29 U.S.C. § 621 et seq. _____ _____ 2
Section 7 ___________ ____ _________________7,12, 21
Section 7 (b) .................................. ..... .............  20
Section 7 (b) (c) ............ ................. ........... ....... 21
Section 7 (d) ......... ...... ............ ............. ...........  8
Section 7(d)(1)  „ ________________________  8

Fair Labor Standards Act (29 U.S.C. § 216(b),
§217) ........ ............ ...................... ............. ............  20

National Labor Relations Act (29 U.S.C. § 151,
et seq.) ___________ _____________________ ___ _ 11

Title VII of the Civil Rights Act of 1964 (42 U.S.C.
§ 2000(e), (h), 2000e(3) (a) ) _____ ____  6. 11, 12

Title VIII of the Civil Rights Act of 1968 (42
U.S.C. 3601 et seq.) _________ ___ ____ ____ ...14-15,18

Miscellaneous:
Agatstein, The Age Discrimination in Employment 

Act of 1 9 6 7 : A Critique, 19 N.Y.L.F. 309
(1973) ..... ..... ................................. .................. ..... 7

Note, Age Discrimination Act of 1967 , 90 Harv. L.
Rev. 380 (1976) ____ ____ _______ _______ ____  9

Note, “ Ross V. Bernhard: The Uncertain Future 
of the Seventh Amendment,” 81 Yale L. J. 112
(1971) ................... .......... ..... .................. .............  9

5 Moore’s Federal Practice If 38.12 ____ _________  9
S. Rep. No. 723, 90th Cong. 1st Sess. _________ ___  5, 7
H. Rep. No. 805, 90th Cong. 1st Sess., 1967 U.S.

Code Cong, and Admin. News 2213 ...................  5, 7

156



(V)

AUTHORITIES CITED— Continued

113 Cong. Rec. 31254 (1967) ...........

Page
9

31255 (1967) ......... ..... . 5
34742 (1967) ........ ........ 11
34745 (1967) .............. . 7
34749 (1967) _________ ...... . 7,14

157





In The
S u p rm ?  d o u rt  n f %  I t t t& h  S ta tes

October Te r m, 1977

No. 76-1346

Lorillard, a D ivision of Lo e w ’s Theatres, In c.,
Petitioner,

v.

Frances P. Pons,
Respondent.

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

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL

INTEREST OF THE AMICUS CURIAE

This brief Amicus Curiae of the Equal Employment 
Advisory Council (EEAC) is submitted pursuant to 
the written consent of all parties.1 EEAC is a volun­
tary, non-profit association, organized as a corpora­
tion under the laws of the District of Columbia. Its

1 Their consents have been filed with the Court Clerk.

159



2

membership includes a broad spectrum of employers 
from throughout the United States, including both 
individual employers and trade and industry associa­
tions. The principal goal of EEAC is to represent 
and promote the common interest of employers and 
the general public in the development and implemen­
tation of sound government policies, procedures and 
requirements pertaining to nondiscriminatory employ­
ment practices. Substantially all of EE AC’s mem­
bers or their constituents, are employers subject to the 
provisions of the Age Discrimination in Employment 
Act of 1967, as amended, 29 U.S.C. § 621 et seq. 
(ADEA or “ the Act” ). As such EEAC members 
have a direct interest in the issues presented for the 
Court’s consideration in this case, which concern 
whether jury trial is available in ADEA actions seek­
ing reinstatement and backpay.

STATEMENT OF THE CASE

Frances Pons initiated this individual action under 
the Age Discrimination in Employment Act, 29 U.S.C. 
§621 et seq. (hereafter ADEA or “ the Act” ), al­
leging that her discharge by Lorillard was motivated 
by age discrimination. She sought reinstatement and 
backpay and demanded jury trial.2 The district court

2 Plaintiff s complaint also requested liquidated damages, 
costs and attorney fees. 549 F.2d at 951, 14 FEP Cases at 
613. However, Pons had “conceded that the liquidated dam­
ages issue would not be triable to a jury” (id. at n. 3) and 
made “ no argument that the other issues [would] support 
trial by jury.” 13 FEP Cases at 444. While the case was 
pending in the court of appeals, plaintiff moved to amend the 
complaint to include a prayer for punitive damages. 549 F.2d

160



3

granted Lorrilard’s motion to strike the jury demand 
as it found ADEA backpay, like backpay under other 
employment discrimination statutes, was part of the 
equitable remedy of reinstatement. On appeal, the 
Fourth Circuit reversed and held that Pons was en­
titled to jury trial on the backpay issue.

SUMMARY OF ARGUMENT

An analysis of the right to jury trial on the issues 
of reinstatement and backpay under the ADEA in­
volves two separate inquiries. The first is whether 
Congress intended to provide jury trial under the 
ADEA. The second is whether the Seventh Amend­
ment right to jury trial applies to ADEA actions for 
reinstatement and backpay.

As to the first issue, it is abundantly clear that 
Congress did not intend to provide jury trial under 
the ADEA. The statute does not mention jury trial 
and the legislative history does not support inferring 
the right in ADEA cases. Further, the carefully 
drawn Congressional enforcement scheme would be 
profoundly disturbed by providing jury trial.

The second inquiry, whether the Seventh Amend­
ment requires jury trial of claims for reinstatement 
and backpay, necessitates application of the three

at 951 n. 2, 14 FEP Cases at 613 n. 2. The court of appeals 
remanded this motion to the district court to decide in the 
first instance the availability of such damages under the 
ADEA. Id. at 954 n. 7, at 615 n. 7. See n. 30 infra. Accord­
ingly, the sole issue before the Fourth Circuit was the right 
to jury trial on the backpay issue. 549 F.2d at 951 n. 3, 14 
FEP Cases at 613 n. 3.

161



4

pronged test of Ross v. Bernhard,3 which inquires 
into the 1938 pre-merger equitable-legal dichotomy, 
whether the remedy sought is legal or equitable and 
whether a jury is able to comprehend the issue. Ap­
plication of these tests to the instant case shows 
that the “ nature of the '[backpay] issue” is equitable 
and does not require jury trial. Id. For ADEA back­
pay claims, like backpay claims under Title VII and 
other employment discrimination statutes, “ are, in 
substance, for restitution.” 4 An ADEA “ judgment 
compelling reinstatement and backpay (double if will­
ful) makes an ADEA plaintiff whole, within the con­
templation of Congress.” 5 Thus, application of the 
second prong of the Ross analysis, with appropriate 
attention to the categorization of reinstatement and 
backpay as equitable remedies under other employ­
ment statutes, shows that the court below was in error. 
The correct conclusion was reached by the Sixth Cir­
cuit, which stated that payment of wrongfully with­
held funds under the ADEA “ is an integral part of 
the basic equitable claim for reinstatement.”  Morelock 
v. NCR Corp., 546 F.2d 682, 689, 14 FEP Cases 65, 
69 (6th Cir. 1976), reh. denied, (May 17, 1977), pet. 
for  cert, pending, No. 77-172. Accordingly, backpay 
is an equitable issue and is “ not suitable for trial by 
jury.” Id.

3 396 U.S. 531, 538 (1970).

4 Polstorff v. Fletcher, 430 F. Supp. 592, 595, 14 FEP Cases 
1638, 1640 (N.D. Ala. 1977).

5 Looney V. Commercial Union Assurance Co., 428 F. Supp. 
533, 537, 14 FEP Cases 843, 846 (E.D. Mich. 1977) and cases 
there cited.

162



5

ARGUMENT

I. The Language of the ADEA and Its Legislative History 
Indicate That Congress Did Not Intend To Afford 
Jury Trial In ADEA Lawsuits.

The first step in determining whether jury trial is 
available in an ADEA action for reinstatement and 
backpay is to determine whether Congress intended 
such actions to be tried to juries. This requires ex­
amination of both the statutory language and the leg­
islative history. Examination of the statutory lan­
guage is simple and conclusive, as there is no provi­
sion authorizing jury trial in ADEA actions. Hannon 
v. Continental National Bank, 427 F. Supp. 215, 218, 
14 FEP Cases 1364,1367 (D. Col. 1977). The absence 
of any such express provision is consistent with the 
legislative history which fails to disclose any sub­
stantial support for providing jury trial under the 
ADEA. Id. The authoritative House and Senate Com­
mittee reports closely analyze the enforcement pro­
visions of the proposed bills and nowhere so much as 
suggest an intent to provide jury trial. S. Rep. No. 
723, 90th Cong. 1st Sess. 5-6, 9-10; H. Rep. No. 805, 
90th Cong. 1st Sess., 1967 U.S. Code Cong, and 
Admin. News 2213, 2218, 2222-2223.6

6 In a Senate colloquy concerning whether the ADEA bill 
would prohibit discrimination on the basis of age between two 
individuals covered by the Act (e.g. 47 and 57), Senator 
Javits stated that the issue would be whether the sole criterion 
for selection between two such individuals was age and that 
a “jury will answer yes or no.”  113 Cong. Rec. 31255 (1967). 
This isolated and off-hand reference, during consideration of 
a wholly separate issue, does not provide the predicate for 
reasonably contending that Congress intended to afford jury 
trial in ADEA actions. Rather, the absence of express statu­
tory sanction, and of any direct discussion in the legislative

163



6

Conversely, when Congress does intend to provide 
jury trial in an employment discrimination statute, 
it does so in express and unmistakable language. 
Thus, although Congress has not provided for jury 
trial in actions alleging discrimination under Title 
VII (42 U.S.C. § 2000(e) et seq .),1 it did provide 
expressly for jury trial in cases alleging criminal 
contempt under that Title (42 U.S.C. § 2 0 0 0 (h )):

In any proceeding for criminal contempt aris­
ing under title * * * VII of this Act, the accused, 
upon demand therefor, shall be entitled to a 
trial by jury, which shall conform as near as may 
be to the practice in criminal cases. . . .

Similarly, in legislation authorizing civil litigation in 
many other contexts, Congress has provided specific­
ally for jury trial where it desired to afford that 
right. For example, jury trial is provided in actions 
by seamen for injury or death under the Jones Act 
(46 U.S.C. § 688), in civil actions against the United 
States to recover taxes (28 U.S.C. § 2402), and in 
suits against federal trustees, receivers or managers 
(28 U.S.C. § 959(a)).* Thus, the absence of a pro­
vision expressly authorizing jury trial in ADEA 
actions is highly significant.

The Congressional decision not to provide authori­
zation for jury trial in ADEA lawsuits is in keeping 7 *

history, including the authoritative committee reports, indi­
cate a conscious Congressional choice that jury trial was not 
to be provided. Compare 42 U.S.C. § 2000(h) affording jury 
trial for alleged criminal contempt under Title VII. See text 
infra.

7 See discussion and cases infra, pp. 15-18.
s See generally 5 Moore’s Federal Practice 38.12.

164



7
with the carefully designed remedial structure of the 
ADEA.9 This Congressional design provides, as a con­
dition precedent to any ADEA lawsuit, that the 
prompt non-legal methods of conciliation, conference 
and mediation provided in Section 7 must be given 
an unimpeded opportunity to resolve an age discrim­
ination complaint. The Secretary of Labor was given 
the responsibility to effectuate these non-legal meth­
ods so that more time consuming legal remedies 
would be used infrequently as a last resort:

It is intended that the responsibility for enforce­
ment vested in the Secretary by section 7, be 
initially and exhaustively directed through in­
formal methods of conciliation, conference, and 
persuasion and formal methods applied only in 
the ultimate sense, (emphasis added).
H.R. No. 805, 90th Cong., 1st Sess., U.S. Cong. 
& Adm. News 2213, 2218 (1967).

Brennan v. Ace Hardware Corp., 495 F.2d 368, 374 
(8th Cir. 1974). The Congressional scheme estab­
lished the conciliation-mediation process as the “ most 
favored method of enforcement”  of the ADEA and 
made “ private lawsuits . . . secondary to administra­
tive remedies and suits by the Secretary of Labor.” 
Rogers v. Exxon Research & Engineering Co., 550 
F.2d 834, 941 n. 11, 14 FEP Cases 518, 523, n. 11 
(3d Cir. 1977), pet. for cert, pending, No. 76-1451.10

9 See 113 Cong. Rec. 34749 (1967) (Cong. Halpern), and 
n. 22, infra.

10 Accord, S. Rep. No. 723, 90th Cong., 1st Sess. 5 (1967) ; 
Burgett v. Cudahy Co., 361 F. Supp. 617, 621 (D. Kan. 1973) ; 
Brennan v. Ace Hardware, supra, 495 F.2d at 374, 7 FEP 
Cases at 661-662. See Agatstein, “The Age Discrimination in 
Employment Act of 1967: A Critique,” 19 N.Y.L.F. 309, 319 
(1973) ; 113 Cong. Rec. 34745 (1967) (Cong. Reid).

165



8

The timely notice required by Section 7 (d ) (1 )11 
prior to a private suit under the ADEA invokes the 
Secretary’s “ exhaustive” efforts to settle the dispute 
through the preferred “ conciliatory and mediative 
action to avert litigation” 11 12— “ when disputes are 
fresh,”  and more easily settled.13

The Congressional preference for prompt concilia­
tion, like the Congressional rejection of ADEA en­

11 Section 7(d) (29 U.S.C. 626(d)) expressly provides:
(d) No civil action may be commenced by any individual 
under this section until the individual has given the Sec­
retary [of Labor] not less than sixty days’ notice of an 
intent to file such action. Such notice shall be filed—
(1) within one hundred and eighty days after the al­
leged unlawful practice occurred . . .

Under the statute, the giving of such notice then invokes a 
corresponding duty upon the Secretary of Labor:

. . . upon receiving a notice of intent to sue, the Secretary 
shall promptly notify all persons named therein as pros­
pective defendants in the action and shall promptly seek 
to eliminate any alleged unlawful practice by informal 
methods of conciliation, conference and persuasion.

12 M cC r ic k a r d  V. A c m e  V is ib le  R e co r d s , In c ., 409 F. Supp. 
341, 343, 344, 13 FEP Cases, 822, 823, 824 (W.D. Va. 1976).

13 M o se s  V. F a ls ta ff  B r e w in g  C o rp ., 525  F.2d 92, 94, 11 FEP 
Cases 828, 830 (8th Cir. 1975). A c c o r d , P la t t  V. B u r ro u g h s  
C orp ., 424 F. Supp. 1329, 1334-35, 14 FEP Cases 1057, 1060 
(E.D. Pa. 1976) ; M cC r ic k a r d  V. A c m e  V is ib le  R e c o r d s , su p ra , 
409 F. Supp. at 343, 13 FEP Cases 823.

Disputes are easier to settle initially because the parties’ 
positions have not hardened and the backpay involved is not 
likely to be great. This is important as the ADEA covers 
employers with but 20 or more employees, and such small em­
ployers may be forced to litigate claims grown large through 
the passage of time.

166



9

forcement by the already over-burdened Equal Em­
ployment Opportunity Commission, was premised on 
the desire that age complaints be expeditiously re­
solved.14 Prompt resolution of such disputes was 
deemed essential, as discharged older Americans and 
their families may face critical problems without a 
regular paycheck and livelihood. Congress was well 
aware of the burden on Title VII discriminatees be­
cause of the dilatory pace of EEOC proceedings and 
crowded court dockets.15 As shown by the primacy 
it gave to the conciliation process, Congress did not 
wish to add the attendant delays of jury trial to the 
problems facing age discriminatees.16

In sum, there is neither express statutory authori­
zation, nor any probative legislative history to indi­
cate a Congressional desire to provide jury trial in 
ADEA actions. To the contrary, jury trial would be 
inconsistent with the Congressional concern for 
prompt resolution of age complaints which is evident 
throughout the ADEA’s carefully designed remedial 
scheme and the legislative history of the Act.

14 See 113 Cong. Rec. 31254 (1967) (Sen. Javits); Age Dis­
crimination in Employment: Hearings on Age Discrimina­
tion Bills Before the General Subcommittee on Labor of the 
House Committee on Education and Labor, 90th Cong., 1st 
Sess. 141-43, 412-14 (1967) ; Note, Age Discrimination Act 
of 1967, 90 Harv. L. Rev. 380, 381 (1976) ; Rogers V. Exxon, 
supra, 550 F.2d at 841, 14 FEP Cases at 523.

15 See Rogers V. Exxon, supra, 550 F.2d at 841, 14 FEP 
Cases at 524. ( “ Congress did not desire . . .  to substantially 
increase the volume of litigation in the trial courts . . .” ).

16 See Note, “Ross V. Bernhard: The Uncertain Future of 
the Seventh Amendment,” 81 Yale L. J. 112, 123-26 (1971).

167



10

II. The Seventh Amendment Is Not Applicable To an 
ADEA Action For Reinstatement and Backpay.

A. Introduction—The Controlling Principles.

Absent Congressional intent to provide jury trials 
under the ADEA, the right must derive, if at all, 
from the Seventh Amendment, which provides that 
“ :[i]n suits at common law . . . the right of trial by 
jury shall be preserved.” The Seventh Amendment 
right to jury trial arises only if a statute “ creates 
legal rights and remedies, enforceable in an action 
for damages in the ordinary courts of law.” Curtis 
v. Loether, 415 U.S. 189, 194 (1974). Thus, the 
existence of the right is determined by reference to 
the English common law of 1791, the effective date 
of the amendment. E.g., Dimick v. Schieclt, 293 U.S. 
474, 476 (1935); Baltimore and Carolina Line, Inc. 
v. Redman, 295 U.S. 654, 657 (1935).17 To be sure, 
the right plainly extends “ beyond the common law 
forms of action recognized” in 179118 to subsequent 
statutes creating new causes of action, but only if 
“ the action involves rights and remedies of the sort 
traditionally enforced in an action at law, rather 
than in an action at equity or admiralty.” Pernell 
v. Southall Realty, 416 U.S. 363, 375 (1974).

The Seventh Amendment inquiry, therefore, turns 
on the “nature of the issue to be tried rather than 
the character of the overall action.” Ross v. Bern- 
hard, 396 U.S. 531, 538 (1970). In Ross, this Court 
established a three-pronged test for determining

17 Accord, Slocum v. New York Life Ins. Co., 228 U.S. 364, 
377 (1913).

18 Curtis V. Loether, supra, 415 U.S. at 193.

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11

whether an issue is “ legal” within the meaning of the 
Seventh Amendment. A court must determine (1) 
whether a claim was legal or equitable before the 
1938 merger of law and equity in the Federal Rules 
of Civil Procedure; (2) whether the remedy sought 
is legal or equitable; and (3) whether the issue is 
triable to a jury given the jurors’ practical abilities 
and limitations. Id. Application of these principles 
yields the conclusion that there is no Constitutional 
right to jury trial in an action for reinstatement and 
backpay under the ADEA.

B. The Equitable Nature of Reinstatement and 
Accompanying Backpay Under the ADEA.

The Congressional purpose in enacting the ADEA 
was to establish federal statutory protection against 
an additional kind of employment discrimination, 
parallel to and consonant with the protections against 
discrimination already embodied in Title VII of the 
Civil Rights Act of 1964 and the National Labor 
Relations Act, 29 U.S.C. § 151, et seq. The legisla­
tive history of the ADEA is replete with compari­
sons to these existing laws dealing with employment 
discrimination based on race, religion, national origin, 
sex and union activities. See, e.g., 113 Cong. Rec. 
34742 (90th Cong., 1st Sess.) (remarks of Rep. 
Steiger and Rep. Matsunaga); id. at 34774 (remarks 
of Rep. Kelly). Representative Burke underscored 
this parallel Congressional intent (113 Cong. Rec. 
34742):

In the last several years, significant legislation 
to bar employment discrimination on the basis 
of race, religion, color, and sex has been enacted. 
It is only just that we do the same against dis­
crimination on the basis of age.

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12

The courts have recognized this parallelism. As 
the Fifth Circuit stated in Hodgson v. First Federal 
Savings & Loan Ass’n, 455 F. 2d 818, 820, 4 FEP 
Cases 269, 270 (5th Cir. 1972):

With a few minor exceptions the prohibitions of 
this enactment {the Age Act] are in terms iden­
tical to those of Title VII of the Civil Rights 
Act of 1964, except that ‘age’ has been substi­
tuted for ‘race, color, religion, sex, or national 
origin.’

Accord, Morelock v. NCR Corp., 546 F.2d 682, 686- 
87, 14 FEP Cases 65, 67 (6th Cir. 1976), reh. de­
nied, (May 17, 1977); Goger v. H. K. Porter Co., 
492 F.2d 13, 15, 7 FEP Cases 71, 72 (3d Cir. 1974).19 20

Although the ADEA incorporates certain of the en­
forcement provisions of the Fair Labor Standards 
Act, its remedies for employment discrimination, like 
those of the other statutes mentioned, center on the 
equitable relief of injunctions compelling reinstate­
ment or hiring and backpay to restore discriminatees 
fully to their prior status. ADEA Section 7.”  See

19 See also Polstorff V. Fletcher, 430 F. Supp. 592, 594, 14 
FEP Cases 1638, 1639 (N.D. Ala. 1977) :

The purposes of Title VII and the ADEA, the discour­
agement of discrimination in employment, are substan­
tially similar. The prohibitions of Title VII, contained in 
42 U.S.C. § 2000e-3(a), and those of the ADEA are iden­
tical except that the former prohibits discrimination 
based on race, color, religion, sex, and national origin, 
while the latter prohibits discrimination based on age. 

Accord, O’Connell v. Ford Motor Co., 11 FEP Cases 1471, 
1472 (E.D. Mich. 1975).

20 Section 7 provides in pertinent part:
(b) The provisions of this chapter shall be enforced in 
accordance with the powers, remedies, and procedures

170



13

Albemarle Paper Co. v. Moody, 422 U.S. 405, 10 FEP 
Cases 1181 (1975).

The court of appeals focused exclusively on the 
general “ legal relief” language of Section 7 and the 
monetary nature of backpay.21 It ignored the Act’s

provided in sections 211(b), 216 (except for subsection 
(a) thereof), and 217 of this title, and subsection (c) 
of this section. Any act prohibited under section 623 of 
this title shall be deemed to be a prohibited act under 
section 215 of this title. Amounts owing to a person as 
a result of a violation of this chapter shall be deemed to 
be unpaid minimum wages or unpaid overtime compensa­
tion for purposes of sections 216 and 217 of this title: 
Provided, that liquidated damages shall be payable only 
in case of willful violations of this chapter. In any action 
brought to enforce this chapter the court shall have juris­
diction to grant such legal or equitable relief as may be 
appropriate to effectuate the purposes of this chapter, 
including without limitation judgments compelling em­
ployment, reinstatement or promotion, or enforcing the 
liability for amounts deemed to be unpaid minimum wages 
or unpaid overtime compensation under this section. Be­
fore instituting any action under this section, the Secre­
tary shall attempt to eliminate the discriminatory prac­
tice or practices alleged, and to effect voluntary compli­
ance with the requirements of this Act through informal 
methods of conciliation, conference, and persuasion.

(c) Any aggrieved individual may bring a civil action 
in any court of competent jurisdiction for such legal or 
equitable relief as will effectuate the purposes of this 
A ct: Provided, That the right of any individual to bring 
such action shall terminate upon the commencement of 
an action by the Secretary to enforce the right of such 
individual under this Act.

21 As discussed below, p. 20, this Court has forcefully stated 
that not every “ award of monetary relief must necessarily 
be ‘legal’ relief” for purposes of the Seventh Amendment.

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14

equally explicit “ equitable relief”  mandate and the 
specifically enumerated remedies of employment in­
junctions and backpay for violations of the Act.* 22 Nor 
did it consider the nature of specific remedies sought 
herein— reinstatement and backpay— as required by 
Ross. See 549 F.2d at 952-53, 14 FEP Cases at 614. 
Compare Looney v. Commercial Union, supra, 428 
F. Supp. at 535 n. 4, 14 FEP Cases at 845 n. 4. 
Because the lower court relied on the “ legal relief” 
language, it found inapplicable precedents under other 
employment discrimination statutes lacking such lan­
guage, and relied instead on Title VIII of the 1968

C u rtis  V. L o e th e r , su p ra , 415 U.S. at 196. S e e  a lso  cases cited 
in fr a  n. 33.

C h ilton  v. N a tio n a l C a sh  R e g is t e r ,  370 F. Supp. 660, 7 FEP 
Cases 203 (S.D. Ohio 1974) is the first and leading case find­
ing jury trial available on backpay claims. However, that 
decision issued before this Court’s C u rtis  decision, and C h il­
to n ’ s reliance on the monetary feature of backpay is accord­
ingly suspect. S ee  a lso  M o r e lo c k  v. N C R , su p ra , 546 F.2d at 
689 n. 17, 14 FEP Cases at 69 n. 17, wherein the Sixth Circuit 
criticized C h ilton  for relying on Title VIII rather than Title 
VII precedents. S e e  discussion in fr a ,  pp. 18-19, and S a n t  v. 
M a ck  T ru ck s , In c ., 424 F. Supp. 621 (N.D. Cal. 1976).

22 S ee  L o o n e y  v. C o m m erc ia l U n ion  A s s u r a n c e  C os ., 429 F. 
Supp. 533, 537, 14 FEP Cases 843, 846 (E.D. Mich. 1977), 
which notes that all of the forms of relief specifically enumer­
ated in the ADEA are equitable. This conclusion is supported 
by the ADEA legislative history, which indicates that Con­
gress viewed backpay as equitable rather than legal relief. 
Thus, after discussing the structure of the ADEA, which had 
been “ carefully drawn,” Congressman Halpern noted that its 
remedies provided for employment injunctions and “ equitable 
wage payments.” 113 Cong. Rec. 34749 (1967). Notwith­
standing the “ legal relief” relief language of the ADEA, Con­
gress plainly intended to provide the “ equitable relief” of 
backpay under that Act, just as it had under Title VII.

172



15

Civil Rights Act (42 U.S.C. 3601 et seq.), which pro­
hibits discrimination in housing, and on the fact 
that “ unpaid minimum wages” under the FLSA are 
considered to be a legal damage claim in private 
lawsuits. Id,.23

Had the court below properly applied the Ross 
analyses, it would have begun to consider “ the na­
ture of the [backpay] issue” (Ross, supra) by de­
termining how the interrelated issues of reinstate­
ment and backpay are treated under Title VII and 
other federal employment discrimination statutes. 
And it must be regarded as significant that under 
other federal employment discrimination statutes, 
these remedies repeatedly have been held to be equit­
able issues falling outside the “ legal” boundaries of 
the Seventh Amendment. The following cases are il­
lustrative of the well settled law finding backpay to 
be an integral element of the equitable remedy of 
restitution under statutes analogous to the ADEA:

NLRA— NLRB  v. Jones & Laughlin Steel 
Corp., 301 U.S. 1, 47-49 (1937).

Title VII— E.g., Robinson v. Lorillard Corp., 
444 F.2d 791, 802, 3 FEP Cases 653, 661 (4th 
Cir.), cert, dismissed under Rule 60, 404 U.S. 
1006 (1971); Johnson v. Georgia Highway E x ­
press, Inc., 417 F.2d 1122, 1125, 2 FEP Cases 
231, 233 (5th Cir. 1969); EEOC  v. Detroit Edi­
son Co., 515 F.2d 301, 308, 10 FEP Cases 239, 
243 (6th Cir. 1975); Slack v. Havens, 522 F.2d 
1091, 1094, 11 FEP Cases 27, 29-30 (9th Cir. 
1975); Loo v. Gerarge, 374 F. Supp. 1338 (D. 
Ha. 1974). See also Curtis, supra, 415 U.S. at 
196-97.

23 See McClanahan V. Mathews, 440 F.2d 320, 19 W H  Cases 
1051 (6th Cir. 1971).

173



16

42 U.S.C. § 1981— E.g., Smith v. Hampton 
Training School, 360 F.2d 577, 9 FEP Cases 
1092, 1094 n. 8 (4th Cir. 1966) ( en banc) ; Lynch 
v. Pan American Airways, 475 F.2d 764 (5th 
Cir. 1973); EEOC  v. Detroit Edison, supra, 515 
F.2d at 309, 10 FEP Cases at 244, Flores v. 
Local 25, IBEW, 407 F. Supp. 218, 12 FEP 
Cases 185 (E.D.N.Y. 1976).

42 U.S.C. § 1983— E.g., Smith v. Hampton, 
supra; Harkless v. Sweeney Independent School 
Dist., 427 F.2d 319, 324, 2 FEP Cases 926, 930 
(5th Cir. 1970), cert, denied, 400 U.S. 991
(1971) ; M cFerren  v. County Bd. of Educ., 455 
F.2d 199 (6th Cir.), cert, denied, 407 U.S. 934
(1972) .

The rationale underlying all of these holdings is that 
hiring and reinstatement orders are essentially equit­
able remedies residing in the court’s discretion, and 
backpay is an integral part of this equitable relief.24

The courts that have engaged in the required Ross 
analysis have reached the same conclusion under the 
ADEA. E.g., Morelock v. NCR, supra, 546 F.2d at 
689, 14 FEP Cases at 68. As the court stated in 
Hannon v. Continental Bank, “ the purpose of an 
award of backpay under the ADEA is principally 
restitutionary.”  25

That conclusion is apt, as backpay under the 
ADEA, like that under Title VII, “ is intended to re­

24 The Department of Justice successfully urged the same 
position in Polstorff V. Fletcher, supra, 430 F. Supp. 592, 14 
FEP Cases 1638, an ADEA suit against the Administrator 
of the National Aeronautics and Space Administration.
25 427 F. Supp. at 220, 14 FEP Cases at 1368. Accord, 

Looney V. Commercial Union Assurance Cos., supra, 428 F. 
Supp. at 537-38, 14 FEP Cases at 847.

174



17

store the recipients to their rightful economic status 
absent the effects of the unlawful discrimination.” 
Robinson v. Lorillard, supra, 444 F.2d at 802. The 
monetary relief— backpay— sought by ADEA com­
plainants “ is the equivalent of funds wrongfully with­
held from them by [an employer] in the past.” More- 
lock, supra, 546 F.2d at 689, 14 FEP Cases at 69.26 
A court order providing an employment injunction 
and backpay to an ADEA complainant serves to re­
store the pre-discrimination status quo by placing 
the complainant in the job position and economic con­
dition that would have existed but for the unlawful 
discrimination.27 Polstorff v. Fletcher, supra, 430 F. 
Supp. at 595, 14 FEP Cases at 1640. “ [A ] judgment 
compelling reinstatement and backpay (double if will­
ful) makes an ADEA plaintiff whole, within the con­
templation of Congress.”  Looney v. Commercial 
Union, supra, 528 F.Supp. at 537, 14 FEP Cases at 
846. See n. 26 supra. As payment of wrongfully

26 In a very real sense in ADEA cases, as in Title VII cases, 
a backpay award forces a “defendant to disgorge funds 
wrongfully withheld from the plaintiff.” Curtis V. Loether, 
supra, 415 U.S. at 197. Without such restitution a successful 
ADEA complainant “would unjustly suffer a loss- of earn­
ings.” Polstorff V. Fletcher, supra, 430 F. Supp. at 595, 14 
FEP Cases at 1640.
27 It is beyond cavil that discrimination of the sort pro­

scribed by the ADEA and Title VII was not unlawful under 
the common law. Moreover, it is equally settled that injunc­
tions compelling reinstatement or hiring under, employment 
discrimination statutes are an equitable remedy unknown 
at common law and are, therefore, outside of the jury trial 
requirement. See cases cited, supra pp. 15-16, and Polstorff 
V. Fletcher, supra, 430 F. Supp. at 594-95, 14 FEP Cases at 
1640.

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18

withheld funds under the ADEA “ is an integral part 
of the basic equitable claim for reinstatement . . . 
the issues to be tried in this case are equitable in 
nature . . . and not suitable for trial by jury.”  More- 
lock, 546 F.2d at 689, 14 FEP Cases at 69.28

This conclusion is not disturbed by the fact that 
jury trial is available in Title VIII cases and in pri­
vate FLSA actions. The court of appeals’ reliance 
on Title VIII and cases thereunder (and rejection 
of Title VII cases) is misplaced. Unlike the ADEA 
and Title VII, Title VIII is not an employment dis­
crimination statute. Rather that title prohibits hous­
ing discrimination.29 Consequently, relief under Title 
VIII does not include equitable reinstatement and 
backpay, and the required Ross analysis of the na­
ture of these particular issues is not advanced by 
reliance on Title VIII cases. Moreover, Title VIII 
actions are at law and tried to juries because that 
statute expressly provides historically “ legal”  relief 
— “ actual damages and not more than $1,000 punitive 
damages” (42 U.S.C. §3612)— in contrast to the 
equitable remedies enumerated in the ADEA and at

28 Accord, Hannon V. Continental National Bank, supra, 427 
F. Supp. at 220, 14 FEP Cases at 1368; Looney V. Commercial 
Union, supra, 428 F. Supp. at 537, 14 FEP Cases at 847; 
Polstorff V. Fletcher, supra, 430 F. Supp. at 594-95, 14 FEP 
Cases at 1640. (“It is untenable that an action for reinstate­
ment and lost earnings on account of unlawful discrimination 
should be equitable under Title VII, but legal under the 
ADEA”).
29 See 42 U.S.C. 3601 et seq.

176



19

issue here.30 Accordingly, the district court was cor­
rect in eschewing reliance on Title VIII and relying 
instead on Title VII and employment discrimination 
cases construing the nature of reinstatement and 
backpay remedies. See 69 F.R.D. at 577-79, 13 FEP 
Cases at 445-47. Accord, Hannon v. Continental 
Bank, supra, 427 F. Supp. at 219-20, 14 FEP Cases 
at 1368; Platt v. Burroughs, supra, 424 F. Supp. at 
1336-37.

The court of appeals’ further contention that jury 
trial is available on the issue of ADEA backpay be­

30 Also wide of the mark is any argument that jury trial 
is required in this case because the ADEA’s general remedial 
language includes the phrase “such legal . . . relief as may be 
appropriate to effectuate the purposes” of the ADEA, which 
several courts have thought to encompass compensatory or 
punitive damages. See e.g. Rogers V. Exxon Research &  
Engineering Co., 404 F. Supp. 324 (D. N.J. 1976), rev’d and 
remanded, 550 F.2d 834, 14 FEP Cases 518 (3d Cir. 1977). 
Such damages were not before the court below (see n. 2 
supra), and are irrelevant to the required Ross analysis of 
the particular issues presented— the categorization of rein­
statement and backpay. See Looney V. Commercial Union, 
supra, 428 F. Supp. at 535 n. 4, 14 FEP Cases at 845 n. 4. 
In any event, the better and majority view, as expressed in 
the Third Circuit’s opinion in Rogers, is that Congress did 
not provide for either compensatory or punitive damages 
under the ADEA. Rogers, supra, 550 F.2d at 839-42. Accord, 
Platt V. Burroughs, supra, 424 F. Supp. at 1335-38, 14 FEP 
Cases at 1061-1063; Fellows V. Medford Corp., 431 F. Supp. 
199,14 FEP Cases 1156 (D. Ore. 1977); Looney v. Commercial 
Union, supra, 428 F. Supp. at 535-37, 14 FEP Cases at 845- 
846; Hannon V. Continental Bank, supra, 427 F. Supp. at 217- 
18, 14 FEP Cases at 1365-66; Sant V. Mack Trucks,. Inc., 424 
F. Supp. 621, 13 FEP Cases 854 (N.D. Cal. 1976). Accord­
ingly, such legal damages are unavailable under the ADEA 
and cannot, in any event, provide the predicate for jury 
trial of ADEA actions for equitable reinstatement and back­
pay.

177



20

cause it is available in private FLSA actions for un­
paid minimum wages31 and because the ADEA in­
corporates certain enforcement procedures of the 
FLSA, is also without merit. See Section 7 (b) supra, 
n. 20. As the Hannon court observed, actions under 
§ 16(b) of the FLSA (29 U.S.C. §216 ( b ) ) are for 
damages alone and are tried to a jury whereas ac­
tions by the Secretary under § 17 (29 U.S.C. § 217) 
are for injunctions to restrain further unlawful wage 
underpayments as well to compel payment of im­
properly withheld monies and are tried to the court.32 
The Hannon court thus found ADEA actions seek­
ing reinstatement and backpay directly analogous to 
actions under § 17. 427 F.Supp. at 221, 14 FEP 
Cases at 1369. Accord, Morelock, supra, 546 F.2d 
at 687-89,14 FEP Cases at 68-69.

This conclusion is supported by the important ob­
servation of this Court in Curtis that it is wrong to 
assume that “ any award of monetary relief must nec­
essarily be ‘legal’ relief” for purposes of the Seventh 
Amendment. 415 U.S. at 196.33 Although, ADEA 
backpay actions do seek monetary relief, they are 
unlike FLSA actions which merely resemble rou­

si Wirtz V. Jones, 340 F.2d 901, 904, 16 W H  771 (5th Cir. 
1965). McClanahan V. Mathews, supra.
32 As to the absence of jury trial in § 17 FLSA actions, see 

e.g., Sullivan V. Wirtz, 359 F.2d 426, 17 W H  284 (5th Cir.), 
cert, denied, 385 U.S. 852 (1966); Wirtz V. Jones, supra, and 
cases cited in Hannon, 427 F. Supp. at 221, 14 FEP Cases 
at 1369.
33 Accord, Morelock, supra, 546 F.2d at 685, 14 FEP Cases 

at 66; Slack V. Havens, 522 F.2d 1091, 1094, 11 FEP Cases 
27, 29 (9th Cir. 1975) ; Hannon, 427 F. Supp. at 220, 14 FEP 
Cases at 1368.

178



21

tine common law actions for collection of a debt. 
Hannon, supra, 427 F.Supp. at 221, 14 FEP Cases 
at 1369. Rather, as shown, ADEA actions for re­
instatement and backpay seek to “ disgorge funds 
wrongfully withheld.”  34 Moreover, such ADEA ac­
tions invoke “ the broad powers of the Court and [are] 
essentially equitable in nature” and subject to the 
court’s discretion. Morelock, supra, 546 F.2d at 689, 
14 FEP Cases at 69. See § 7 ( b ) ( c )  supra, n. 20. 
Thus, the unfettered equitable discretion vested in 
the court by Congress in Section 7 “ to determine the 
appropriate remedies in each case for effectuating 
the purposes of the ADEA also makes jury trial in­
appropriate.” Hannon, 427 F. Supp. at 221, 14 FEP 
Cases at 1369. Accord, Morelock, loc. cit. Any other 
conclusion would be anomalous, as backpay under 
other employment discrimination statutes such as 
Title VII has been held to be equitable (see cases 
supra pp. 15-16), after application of the Ross test, 
and it is untenable that the constitutional nature of 
this remedy can change from statute to statute. See 
Polstorff v. Fletcher, supra, 430 F. Supp. at 594, 14 
FEP Cases at 1640; Hannon, supra, 427 F. Supp. at 
220, 14 FEP Cases at 1368; Morelock, 546 F.2d at 
689, 14 FEP Cases at 69.

84 See supra, pp. 16-18.

179



22

CONCLUSION

For the foregoing reasons, the Amicus Curiae sub­
mits that the district court correctly concluded that 
jury trial is not available in ADEA actions seeking 
reinstatement and backpay, and therefore requests 
that the judgment of the court of appeals be reversed 
with directions to reinstate the order of the district 
court granting the motion to strike.

Respectfully submitted,

Robert E. W iliams 
Frank  C. Morris, Jr. 

McGuiness & W illiams 
1747 Pennsylvania Ave., N.W. 
Washington, D.C. 20006

September, 1977

180



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