State of Louisiana v. United States of America Motion for Leave to File Brief Amicus Curiae Urging Dismissal of the Appeal

    No. 00-1614

In  T h e

Supreme Court of ti|e United sta tes

N a t io n a l  R a il r o a d  Pa s s e n g e r  C o r p o r a t io n ,

Petitioner,
v.

A b n e r  J. M o r g a n , Jr .,

Respondent.

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

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

IN SUPPORT OF RESPONDENT

E l a in e  R . Jo n e s  
Director Counsel 
T h e o d o r e  M . S h a w  
N o r m a n  J. C h a c h k in  
Ja m e s  L . C o t t  

*R o b e r t  H. S t r o u p  
N a a c p  Le g a l  D e f e n s e  a n d  

E d u c a t io n a l  F u n d , In c . 
99 Hudson Street, 16th Floor 
New York, NY 10013-2897 
(212) 965-2200 

*Counsel of Record 
Attorneys for Amicus Curiae 

Dated: October 29,2001

E r ic  S c h n a p p e r  
U n iv e r s it y  o f  

W a s h in g t o n  S c h o o l  
o f  L a w

1100 N.E. Campus Way 
Seattle, WA 98105 
(206)616-3167



1

TABLE O F CONTENTS

Page

Table of Authorities ..................................................................ii

Interest of Amicus......................................................................... 1

Summary of A rgum ent................................................................ 1

A RGU M EN T............................................................................... 5

I. THE TEXT AND LEG ISLATIVE  
HISTORY OF THE TWO-YEAR BACK  
PAY LIMIT IN SECTION 706(g)(1) 
DEM ONSTRATE THAT THE 1972 
A M E N D M E N T S  TO  T IT L E  V II  
CODIFIED A CONTINUING VIOLATION 
DOCTRINE THAT PERMITS RECOVERY 
OF BACK PAY TWO YEARS PRIOR TO 
FILING THE C H A R G E ..........................................5

H. THE INTERPRETATION OF TITLE VII 
NOW ADVANCED BY THE SOLICITOR  
G EN ER A L W O ULD IN V A L ID A T E  
EXISTING FEDERAL REGULATIONS 
AND DIRECTIVES.................................................. 13



11

m. DISQUALIFYING A PLAINTIFF FROM  
FULL RELIEF FROM A CONTINUING 
VIOLATION ON THE BASIS OF WHEN 
THE PLAINTIFF KNEW OR SHOULD  
H A V E  K N O W N  O F  T H E  
DISCRIMINATORY NATURE OF THE  
EMPLOYER’S UNLAWFUL CONDUCT IS 
NOT SUPPORTED BY EITHER THE 
LANGUAGE OF THE ACT OR ITS

TABLE O F CONTENTS (continued)
Page

LEGISLATIVE HISTORY.....................................19

CONCLUSION .......................................................................23

Appendix A —

THE LEGISLATIVE HISTORY OF THE 
EQUAL EMPLOYMENT OPPORTUNITY 
ACT OF 1972 .......................................................... A1

TABLE OF AUTHORITIES

Cases:

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975)............................................... 4, 22

Austin v. Reynolds Metals Co.,
327 F. Supp. 1145 (E.D. Va. 1 9 7 0 ) ......................... 7n

Baker v. F & F Investment Co.,
489 F.2d 829 (7th Cir. 1983)......................................  20



Ill

Belt v. Johnson Motor Lines, Inc.,
458 F.2d 443 (5th Cir. 1 9 7 2 )...................................  23

Berry v. Board of Supervisors ofL.S.U.,
715 F.2d 971 (5th Cir. 1 9 8 3 ).................................... 20

Brown v. General Services Administration,
425 U.S. 820 (1976)............................................  12, 13

Chevron U.S.C. Inc. v. Natural Resources 
Defense Council, Inc.,

467 U.S. 837 (1984)...................................................  16

Crawford v. Western Electric Co.,
614 F.2d 1300 (5th Cir. 1 9 8 0 )......................  20n-21n

EEOC v. Detroit Edison,
515 F.2d 301 (6th Cir. 1 9 7 5 ) .................................... 9n

EEOC v. Enterprise Ass’n Steamfitters,
542 F.2d 570 (2d Cir. 1976)......................................  9n

Franks v Bowman Transp. Co.,
424 U.S. 747 (1976)...................................................  22

Franks v. Bowman Transp. Co.,
495 F.2d 398 (5th Cir. 1 9 7 4 ) .................................... 9n

TABLE OF A UTHORITIES (continued)
Page

Cases (continued):



IV

Cases (continued):

Guardians Ass’n of New York City v. Civil 
Serv. Comm’n,

633 F.2d 232 (2d Cir. 1980), af fd
463 U.S. 582 (1983)................................................. 20n

Hairston v. McLean Trucking Co.,
520 F.2d 226 (4th Cir. 1 9 7 5 ) .................................... 9n

Hall v. Ledex,
669 F.2d 397 (6th Cir. 1 9 8 2 ) .................................  21 n

Havens Realty Corp v. Coleman,
455 U.S. 363 (1981)......................................  3 , 15n, 21

In re Consolidated Pretrial Proceedings,
582 F.2d 1142 (D.C. Cir. 1978), af fd in part 
& rev’d in part on other grounds sub nom.
Zipes v. Trans World Airlines, Inc., 455
U.S. 385 (1982) .........................................................  9n

Jewett v. ITT Corp.,
653 F.2d 89 (3d Cir. 1981)......................................12n

Johnson v. Goodyear Tire & Rubber Co. ,
491 F.2d 1364 (5th Cir. 1 9 7 4 ) ....................................9

Johnson v. Goodyear Tire & Rubber Co.,
349 F. Supp. 3 (S.D. Tex. 1972) .............................  8n

TA BLE O F AUTHORITIES (continued)
Page



V

Kuhnle Brothers, Inc. v. County of Geauga,
103 F.3d 516 (6th Cir. 1 9 9 7 )...................................  20

Lajfey v. Northwest Airlines, Inc.,
740 F.2d 1071 (D.C. Cir. 1984 )...............................  9n

Lajfey v. Northwest Airlines, Inc.,
567 F.2d 429 (D.C. Cir. 1976 ).................................  9n

Lorance v. AT&T Technologies,
490 U.S. 9 0 0 (1 9 8 9 )...................................................  14

Malhotra v. Cotter & Co.,
885 F.2d 1305 (7th Cir. 1 9 8 9 ).................................  20

Meat Cutters v. Safeway Stores,
4 FEP Cas. 510 (D. Kan. 1 9 7 2 )...............................  8n

Milton v. Weinberger,
645 F.2d 1070 (D.C. Cir. 1981 ).............................12n

Mixson v. Southern Bell Tel. & Tel. Co.,
334 F. Supp. 525 (N.D. Ga. 1 9 7 1 )...........................7n

Occidental Life Ins. Co. v. EEOC,
432 U.S. 355 (1977)...................................................  14

Patterson v. Youngstown Sheet & Tube Co.,
659 F.2d 736 (7th Cir. 1 9 8 1 )................................. 2 In

TABLE O F AUTHORITIES (continued)
Page

Cases (continued):



VI

Cases (continued):

Pettway v. American Cast Iron Pipe Co.,
494 F.2d 211 (5th Cir. 1 9 7 4 ) .................................... 9n

Rich v. Martin Marietta,
522 F.2d 333 (10th Cir. 1 9 7 5 ) ...............................  21n

Roberts v. North American Rockwell Corp.,
650 F.2d 823 (6th Cir. 1 9 8 1 ) ....................................23

Sabree v. United Brotherhood of Carpenters 
& Joiners,

921 F.2d 396 (1st Cir. 1990) .................................... 20

Shehadeh v. Chesapeake & Potomac Tel. Co.,
595 F.2d 711 (D.C. Cir. 1 9 7 8 )......................  12n, 21n

Stallworth v. Schuler,
111 F.2d 1431 (11th Cir. 1 9 8 5 ) .............................  21n

Teamsters v. United States,
431 U.S. 3 2 4 (1 9 7 7 )...................................................  22

Tippett v. Liggett & Myers Tobacco Co.,
316 F. Supp. 292 (M.D.N.C. 1 9 7 0 ) ........................  8n

United States v. Georgia Power Co.,
474 F.2d 906 (5th Cir. 1 9 7 3 ) ...............................  8n, 9

TABLE OF A UTHORITIES (continued)
Page



United States v. Georgia Power Co.,
1971 WL 162 *27, 3 FEP Cas. 767
(N.D. Ga. 1 9 7 1 )........................................................... 8n

Watson v. Limbach Co.,
333 F. Supp. 754 (S.D. Ohio 1 9 7 1 )........................ 7n

White v. Carolina Paperboard Corp.,
564 F.2d 1073 (4th Cir. 1 9 7 7 )...............................  20n

Williams v. Owens-Illinois,
665 F.2d 918 (9th Cir. 1 9 8 2 ).................................  2 In

Statutes:

42 U.S.C. § 2 0 0 0 e-5 (e )(l)...................................................5, 6

42 U.S.C. § 2000e-5 (g )(l)................................................... 5, 6

42 U.S.C. § 2000e-6(c) ..............................................................7

42 U.S.C. §2000e-16(b) ..........................................................16

§ 706(e)(1), Civil Rights Act of 1964,
42 U.S.C. § 2 0 0 0 e-5 (e )(l).........................2, 7, 13

Vll

TABLE O F AUTHORITIES (continued)
Page

Cases (continued):

§ 706(g)(1), Civil Rights Act of 1964.
42 U.S.C. § 2000e-5(g)(l) . . .  2, 7, 11, 13, 14, 15



Vlll

Statutes (continued):

§ 717(a), Civil Rights Act of 1964,
42U.S.C. § 2000e-16(a) ......................................16

§ 717(b), Civil Rights Act of 1964,
42 U.S.C. §2000e- 16(b) ......................................16

Regulations-.

29 C.F.R. part 1 6 1 4 ...................................................................15

29C.F.R . §1614.105(a)............................................................ 16

29 C.F.R. § 1614.106(b) ..........................................................18

29 C.F.R. § 1614.204(1)(3)..............................................  18, 19

29 C.F.R. § 1614.407 .............................................................  18

29 C.F.R. § 1614.501(a) ( 4 ) .................................................... 17

29 C.F.R. § 1614.501(b)(3).................................................... 18

29 C.F.R. § 1614.501(c)(1) .................................................... 18

Management Directive 110,
http://www.eeoc.gov/federal/mdllO.html . 15, 16, 17, 18

TABLE OF AUTHORITIES (continued)
Page

64 Fed. Reg. 37653 (1999) 19

http://www.eeoc.gov/federal/mdllO.html


IX

TABLE OF AUTHORITIES (continued)
Page

Regulations (continued):

57 Fed. Reg. 12644 (1992).....................................................  19

Congressional Materials:

117 Cong. Rec. 26555(1971) ............................................  A5

117 Cong. Rec. 31784(1971) ............................................  A6

117 Cong. Rec. 31961 (1971) ............................................A6

117 Cong. Rec. 31973 (1971) ............................................  A7

117 Cong. Rec. 31979(1971) ............................................  A7

117 Cong. Rec. 32097 (1971) ............................................  A8

117 Cong. Rec. 32106(1971) ............................................  A7

117 Cong. Rec. 39739(1971) ..........................................  A10

118 Cong. Rec. 1071 (1972) ................................... A10.A11

118 Cong. Rec. 302(1972) ..............................................  A10

118 Cong. Rec. 4940 (1972) ...................................  A12-A13

118 Cong. Rec. 4941 (1972) ............................................  A13



X

Congressional Materials (continued):

118 Cong. Rec. 4942 (1972) ................................... A12, A13

118 Cong. Rec. 7168 (1972) ............................................  4, 22

118 Cong. Rec. 7569-70 (1972)..................................... A13

S. Conf. Rep. No. 92-681 (1 9 7 2 )...................................... A13

H.R. Conf. Rep. No. 92-899 (1972), reprinted in
1972 U.S.C.C.A.N. 2 1 7 9 ...................................... A13

S. Rep. No. 92-415 (1 9 7 1 ).................................................  A10

H.R. Rep. No. 92-238 (1971), reprinted in
1972 U.S.C.C.A.N. 2 1 3 7 ........................................  A7

Hearings Before the Subcommittee on Labor of the 
Senate Committee on Labor and Public 
Welfare, 92nd Cong., 1st Sess. (1971) . . .  lOn, A8, A9

Hearings Before the General Subcommittee on 
Labor o f the House Committee on 
Education and Labor on H.R. 1746,
92nd Cong., 1st Sess. (1971) . . . .  A l, A2, A3, A4, A5

TABLE OF A UTHORITIES (continued)
Page



XI

TABLE OF AUTHORITIES (continued)
Page

Briefs:

Brief on Behalf of the Chamber of Commerce of 
the United States, Albemarle Paper Co. 
v. Moody, 422 U.S. 405 (1975) .............................  13n

Brief for United States Equal Employment Opportunity 
Commission as amicus curiae, King v.
Georgia Power Co., 474 F.2d 906 (5th
Cir. 1973)............................................................ 9n-10n

Brief for United States Equal Employment Opportunity 
Commission as amicus curiae, Johnson v.
Goodyear Tire & Rubber Co., 491 F.2d 1364
(5th Cir. 1974).............................................................. lOn

Brief for United States Equal Employment Opportunity 
Commission as amicus curiae, Pettway v.
American Cast Iron Pipe Co., 494 F.2d 211
(5th Cir. 1974).............................................................. lOn

Brief for the EEOC, Occidental Life Ins. Co. v.
EEOC, 432 U.S. 355 (1977) ................................... 14n

Brief for Respondents, Brown v. General Services
Administration, 425 U.S. 820 (1976)...................... 14n

Brief of the Texas Association of Business,
Occidental Life Ins. Co. v. EEOC, 432 
U.S. 355 (1977) ................................... 12n



xn

TA BLE OF AUTH O RITIES (continued)
Page

Briefs (continued):

Brief for the United States, Havens Realty Corp. v.
Coleman, 455 U.S. 363 (1982) ...............................  14

Brief for the United States, Lorance v. AT&T
Technologies, 490 U.S. 900 (1 9 8 9 )..................  14-15

Brief for the United States, Trout v. Lehman, 702 
F.2d 1094 (D.C. Cir. 1983), vacated and 
remanded on other grounds, 465 U.S. 1056 
(1984)................................................................  lln -12n

Brief for the United States, United States v. City
of Warren, 138 F.3d 1083 (6th Cir. 1998) . . .  12n, 15

Other Authorities:

George T. Sape & Thomas J. Hart, Title VII 
Reconsidered: The Equal Employment 
Opportunity Act o f 1972, 40 Geo. Wash. 
L. Rev. 824 (1 9 7 2 ).................................... A1



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

IN SUPPORT OF RESPONDENT1

Interest of Amicus

The NAACP Legal Defense and Educational Fund, Inc. 
(“L D F ’) is a non-profit corporation established under the laws 
of the State of New York. It was formed to assist black persons 
in securing their constitutional rights through the prosecution 
of lawsuits and to provide legal services to black persons 
suffering injustice by reason of racial discrimination. For six 
decades LDF attorneys have represented parties in litigation 
before this Court and the lower courts involving race 
discrimination and particularly discrimination in employment. 
LDF believes that its experience in, and knowledge gained 
from, such litigation will assist the Court in this case.

Summary of Argument

The petitioner and the United States as amicus ask this 
Court to interpret provisions of Title VII of the Civil Rights Act 
of 1964 (the “Act”) in a way that is contrary to the express 
language of the statute as well as the legislative history of the 
Equal Employment Opportunity Act of 1972 (the “ 1972 Act”). 
This Court should reject this effort to override Congressional 
intent as well as Congressional action by limiting the scope of 
Title VII’s continuing violation doctrine.

'By letter to the Court dated July 26, 2001, the parties consented 
to the filing of amicus curiae briefs by any third party in support of either 
party. No counsel for any party authored this brief in whole or in part, and 
no person or entity other than amicus made any monetary contribution to the 
preparation or submission of this brief.



2

By their express terms, sections 706(e)(1) and 706(g)(1) 
of the Act serve different functions— the former serves as an 
exhaustion mechanism to invoke the administrative process 
while the latter serves as a limit on the remedial authority of the 
court after a finding of unlawfulness. The continuing violation 
doctrine relates to both sections, in that both the question 
whether or not the administrative process was invoked in a 
timely manner as well as the scope of back pay relief can be 
affected by application of the doctrine.

The continuing violation doctrine as applied in cases 
under Title VII of the Civil Rights Act of 1964 was developed 
by the federal courts in 1965-72 during a period when there was 
no express statute of limitations applicable to remedies under 
Title VII. When Congress amended the Act in 1972, it 
recognized the absence of a statute of limitations and imposed 
a two-year cap on back pay, rather than allowing the courts to 
award damages in continuing violation cases back to the 
effective date of the Act— July 2, 1965— or to apply varying 
state statutes of limitations. At the same time, however, 
Congress endorsed case law that had developed interpreting 
certain violations as continuing in nature.

Both prior to and shortly after the passage of the 1972 
Act, courts have, in the context of the continuing violation 
doctrine, treated the two-year period as a cap on back pay so 
long as the administrative process has been invoked in a timely 
fashion. This is consistent with the underlying policies of the 
Act— to assure that stale claims are not subject to processing by 
the administrative agency and the courts— while at the same 
time affording victims of ongoing patterns or policies of 
discrimination the fullest relief possible. This Court should not 
treat the administrative exhaustion requirement as a statute of 
limitations when neither Congress nor the courts (both prior 
and shortly after enactment of the 1972 Act) treated it as such. 
Rather, as the court below recognized, in the limited



3

circumstances where continuing violations exist, Title VII 
authorizes back pay relief up to two years prior to the filing of 
the charge, so long as the charge is otherwise timely filed. Nor 
is the defendant-employer prejudiced by issues of staleness. As 
this Court held in Havens Realty Corp v. Coleman, 455 U.S. 
363 (1981) the policy against staleness that underlies traditional 
statutes of limitations is satisfied by the continuing violation 
doctrine because some discriminatory act must occur or 
discriminatory policy exist within the charge-filing period.

The position advanced by the United States in this case 
is not only contrary to positions it has asserted before this Court 
and before many of the courts of appeals for nearly thirty years, 
but it is also directly contrary to existing federal regulations 
adopted by the Equal Employment Opportunity Commission 
and binding upon the federal agencies, including the 
Department of Justice. Those regulations provide that federal 
employees are entitled to recover back pay for two years prior 
to the filing of the administrative charge when they prove a 
continuing violation.

Finally, this Court should not engraft onto the Act a 
disqualification from relief for victims of discrimination who, 
knowingly or unknowingly, fail to file an administrative charge 
within 180 or 300 days of experiencing the first instances of a 
continuing course of discrimination. Imposition of such a 
disqualification was not a feature of the continuing violation 
doctrine prior (or immediately subsequent) to passage of the 
1972 Act. If Congress were to determine that such a 
disqualification is appropriate, Congress can legislate such a 
provision. However, there is no such provision within the Act 
itself and such a disqualification would be directly contrary to 
the “make whole” purpose of the Act. “The scope of relief 
under . . .  the Act is intended to make the victims of unlawful 
discrimination whole, and . . .  requires that persons aggrieved 
. . .  be so far as possible, restored to a position where they



4

would have been were it not for the unlawful discrimination.” 
Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975) 
(quoting Section-by-Section Analysis by Senator Williams 
related to the 1972 Act, 118 Cong. Rec. 7168 (1972)).

Disqualifying a plaintiff from full relief under the 
continuing violation doctrine based upon when the plaintiff 
knew or should have known of the discriminatory nature of the 
employer’s conduct is unnecessary to protect an employer 
against “stale” claims. This is because the continuing violation 
doctrine under Title VII requires that a timely charge be filed 
with the EEOC in order to obtain relief. There is, then, no 
issue of staleness, and no need for an “inquiry notice” test. 
Because the continuing violation doctrine applies only to those 
limited instances where an employer engages in a pattern or 
policy of discrimination, or a series of related discriminatory 
acts, the employer has readily the means to relieve itself from 
the reach of the doctrine— the employer need only stop 
violating the law. To penalize a plaintiff for not seeking to 
invoke the administrative process at the earliest instances of 
what turns out to be a continuing course of discrimination 
places the burden of stopping discrimination upon the victim of 
discrimination. That burden is more appropriately assigned to 
the wrongdoer—the employer who is violating the law by 
maintaining a policy of discrimination or engaging in a pattern 
or series of discriminatory acts.



5

ARGUMENT

I. THE TEXT AND LEGISLATIVE HISTORY OF 
THE TWO-YEAR BACK PAY LIMIT IN 
SECTION 706(g)(1) DEMONSTRATE THAT THE 
1972 AMENDMENTS TO TITLE VII CODIFIED 
A CONTINUING VIOLATION DOCTRINE THAT 
PERMITS RECOVERY OF BACK PAY TWO 
YEARS PRIOR TO FILING THE CHARGE.

The decision of the Court of Appeals in this case 
properly applies the continuing violation doctrine endorsed by 
Congress in its 1972 amendments to Title VII of the Civil 
Rights Act of 1964. In contrast, the decision of the district 
court, and the brief for petitioner before this Court, rest on a 
fatally flawed premise: that the charge filing period in section 
706(e)(1)2 (in this case 300 days) precludes a court from 
providing any remedy for violations of Title VII occurring prior 
to that period. That interpretation of section 706(e)(1) cannot 
be reconciled with the existence of section 706(g)(1),3 which

2 Section 706(e)(1) provides:

A charge under this section shall be filed within one hundred and 
eighty days after the alleged unlawful employment practice 
occurred . . . except that in a case of an unlawful employment 
practice with respect to which the person aggrieved has initially 
instituted proceedings with a State or local agency with authority 
to grant or seek relief from such practice.. . ,  such charge shall be 
filed by or on behalf of the person aggrieved within three hundred 
days after the alleged unlawful employment practice occurred___

42 U.S.C. § 2000e-5(e)(l).

3 Section 706(g)(1) provides:

If the court finds that the respondent has intentionally engaged in 
or is intentionally engaging in an unlawful employment practice 
charged in the complaint, the court may enjoin the respondent from 
engaging in such unlawful employment practice, and order such



6

establishes for back pay awards an express and considerably 
longer two-year limitation period.

If section 706(e)(1) itself established the anterior 
temporal limitation on the Title VII violations that could be 
redressed, it would bar back pay awards for losses that occurred 
more than 300 days before the filing of the charge. Such a 300- 
day cutoff, however, would render meaningless the two-year 
cutoff provision of section 706(g)(1).

In an effort to avoid this implausible conclusion, the 
United States suggests that the two-year back pay limit was 
adopted to limit monetary relief in cases in which the 300 (or 
in some cases 180) day charge-filing period was extended by 
equitable tolling. (Brief of United States, 25). But section 
706(g)(1) would limit back pay in such cases only if the charge 
filing period were extended by equitable tolling for at least 14 
(in deferral states more than 18) months.4 Experience with 
enforcement of the Act suggests that this is highly unlikely to 
happen. The United States has not identified a single Title VH 
case in which this has occurred, either before or after the 1972 
amendments. This is not the circumstance that would have 
prompted Congressional action.

In the alternative, the United States urges that the two-

affirmative action as may be appropriate, which may include, but 
is not limited to, reinstatement or hiring o f employees, with or 
without back pay, . . .  or any other equitable relief as the court 
deems appropriate. Back pay liability shall not accrue from a date 
more than two years prior to the filing of a charge with the 
Commission.

42 U.S.C. § 2000e-5(g)(1).

4The charge filing period is usually 6 months (180 days) in non­
deferral states and 10 months (300 days) in deferral states.



7

year limit was adopted to limit back pay awards in pattern or 
practice cases brought by the Department of Justice. (Brief of 
United States, 25). But the 1972 legislation stripped the 
Department of responsibility for most such cases, transferring 
it to the EEOC, which in turn is only authorized to bring a civil 
action in response to a timely-filed Title VII charge. 42 U.S.C. 
§ 2000e-6(c).

The far more reasonable interpretation of the statute is 
that section 706(e)(1) constitutes an exhaustion requirement, 
not a statute of limitations. Where an ongoing violation 
continues into the charge filing period, the requirements of 
section 706(e)(1) itself are met; the temporal limitation on the 
back pay period is provided by section 706(g)(1) rather than by 
section 706(e)(1). The legislative history of section 706(g)(1) 
makes clear that this interpretation is precisely how Congress 
understood the two-year back pay limit when it was adopted in 
1972.5

The two-year back pay provision of section 706(g) has 
its origins in the continuing violation doctrine, which by 1971 
was fairly well established in the lower courts.6 Early decisions

5Because the National Labor Relations Act has no analogous two- 
year back pay cap, petitioner’s reliance upon that statute as authority (Brief 
of Petitioner, at 23-25) is misplaced. The two-year cap in Title VII was not 
modeled on the National Labor Relations Act.

6E.g., Mixson v. Southern Bell Tel. & Tel. Co., 334 F. Supp. 525, 
527 (N.D. Ga. 1971)(“if the alleged unlawful employment practice is 
continuous in nature, the 90-day limitations period for filing with the EEOC 
does not apply since there is no single date after which the period might 
begin to run”); Austin v. Reynolds Metals Co., 327 F. Supp. 1145, 1153 
(E.D. Va. 1970) (“an allegation to the Commission of continuing 
discrimination can [bring] events which occurred before the prior ninety 
days to the Commission’s attention.”); Watson v. Limbach Co., 333 F. Supp. 
754 (S.D. Ohio 1971) (August, 1968 charge was timely basis to challenge 
August, 1967 rejection for hire in light of continuing use during charge



8

assumed that the only limitation in Title VII itself was the 
effective date of the statute, July 2, 1965.7 There were in pre- 
1972 decisions repeated references to “continuing violations,” 
and most participants in the legislative process read these cases 
to mean that Title VII itself contained no back pay limitations 
period. That proved to be an accurate understanding of those 
cases;8 the lower courts ultimately divided as to whether the 
back pay for pre-1972 Title VH actions should be limited by the

filing period of discriminatory hiring test); Tippett v. Liggett & Myers 
Tobacco Co., 316 F. Supp. 292 (M.D.N.C. 1970) (Females adversely 
impacted by actions in July, 1965 entitled to relief on basis o f EEOC 
charges filed May, 1968 in light of showing that violation was continuing in 
nature).

1E.g., Meat Cutters v. Safeway Stores, Inc., 4 FEP Cas. 510, 512 
(D. Kan. 1972) (“The effective date for awarding back pay in this case 
would be the effective date of Title VII on July 2, 1965"). The United 
States asserts that two lower court cases had held that the charge filing 
period limited the scope of back pay even in the case of a continuing 
violation: United States v. Georgia Power Co., 1971 WL 162 *27, 3 FEP 
Cas. 767 (N.D. Ga. 1971); Johnson v. Goodyear Tire & Rubber Co., 349 F. 
Supp. 3 ,18  n.8 (S.D. Tex. 1972). (Brief of United States, 25) However, in 
neither case did the court consider the continuing violation doctrine, and in 
Georgia Power, 3 FEP Cas. at 788-89, the court held that the Department 
of Justice could not obtain back pay in a pattern or practice case. Had this 
rule o f law not have been reversed on appeal, there would have been no 
need for a back pay cap on suits brought by the United States. Neither of 
these cases supports the government’s position here.

%E.g., United States v. Georgia Power Co., 474 F.2d 906,922 (5th 
Cir. 1973) (“Though private complaints must be filed before the EEOC 
within 90 days, we cannot agree with the company that this period is the 
proper measure. This deadline is designed primarily to enhance the 
possibility of informal, out-of-court resolution of employment discrimination 
complaints through prompt administrative action. It is in no sense a 
limitation on the period for which one may receive back pay relief. 
Employment discrimination may as readily be a continuing course of 
conduct as a single event.”).



9

effective date of the Act9 or the most analogous state 
limitations period.10 The United States itself asserted, in a 
number of cases, that Title VII had no statute of limitations and 
that the scope of relief was determined by either the effective 
date of the act or by borrowing state law, not the charge-filing 
period.11 The government’s assertion in its brief in this case,

9E.g., Hairston v. McLean Trucking Co., 520 F.2d 226,233-34 (4th 
Cir. 1975) (awarding back pay to July 2, 1965 on basis of EEOC charge 
filed May, 1967); In re Consolidated Pretrial Proceedings, 582 F.2d 1142, 
1147, 1150 (D. C. Cir. 1978) o ff d in part, rev’d  in part on other grounds 
sub nom. Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982) (relief 
afforded from July 2, 1965 based on EEOC charge filed May 31, 1970).

l0E.g., Laffey v. Northwest Airlines, Inc., 740 F.2d 1071, 1093-94 
(D.C. Cir. 1984) (in absence of federal limitations period, borrowing 
Minnesota statute of limitations for Title VII claim brought by private 
plaintiffs prior to 1972); Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 
468-69 (D.C. Cir. 1976) (providing for the application o f the analogous state 
statute of limitations to award of back pay in suit brought by private parties 
under Title VII); EEOC v. Enterprise Ass 'n Steamfitters, 542 F.2d 570,590  
(2d Cir. 1976) (borrowing New York state statute of limitations to private 
and governmental lawsuits filed under Title VII in 1971); EEOC v. Detroit 
Edison, 515F. 2d 301,315 (6th Cir. 1975) (borrowing Michigan limitations 
period for Title VII action brought by private and United States plaintiffs); 
Franks v. Bowman Transp. Co., 495 F. 2d 398, 405 (5th Cir. 1974) 
(applying Georgia statute of limitations for back pay relief in private Title 
VII action); Pettway v. American Cast Iron Pipe Co., 494 F. 2d 211, 258 
(5th Cir. 1974) (borrowing Alabama statute of limitations in private Title 
VII action); Johnson v. Goodyear Tire & Rubber Co., 491 F. 2d 1364,1378  
(5th Cir. 1974) (rejecting argument that 90-day charge filing period was a 
limitation on relief, court borrowed Texas statute of limitations for private 
suit under Title VII).

“ inJanuary, 1972, just prior to passageofthe 1972 Act, the EEOC 
asserted that “no court has heretofore imposed a time limitation on the relief 
available to rectify the continued impact of discrimination, other than the 
effective date o f Title VH, July 2, 1965.” Brief for United States Equal 
Employment Opportunity Commission as amicus curiae at 5, King v. 
Georgia Power Co., 474 F.2d 906 (5th Cir. 1973) (No. 71-3293); See also



10

that the “traditional” continuing violations doctrine does not 
authorize relief for actions occurring prior to the charge-filing 
period (Brief of United States, 12), is contrary to the legislative 
history, substantial court authority both before and shortly after 
the 1972 Amendments and the government’s own position in 
numerous litigated cases.

The legislative history of the two-year back pay 
limitation is set out in detail in Appendix A. The legislative 
history demonstrates that Congress intended to incorporate a 
two-year cap on back pay liability, using as models the statutes 
of limitations found in the Fair Labor Standards Act, the 
Walsh-Healy Act, the Bacon-Davis Act and the Equal Pay 
A ct.12 The impetus for the incorporation of the cap was then- 
developing case law and the position of the federal government 
that Title VII itself did not contain any limitations period and 
that an employer’s back pay liability extended back to the

Brief for United States Equal Employment Opportunity Commission as 
amicus curiae at 13, Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 
1364 (5th Cir. 1974) (No. 73-1712) (arguing that it was error to apply 90- 
day charge filing period as a limitations on back pay recovery in Title VII 
action brought by private plaintiffs); Brief for United States Equal 
Employment Opportunity Commission as amicus curiae at 43, Pettway v. 
American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974) (No. 73-1163) 
(arguing that Alabama’s one year statute of limitations was applicable to 
Title VII back pay claim in private plaintiffs’ action).

,zHearings Before the General Subcommittee on Labor of the 
House Committee on Education and Labor on H.R. 1746, 92nd Cong., 1st 
Sess. 281 (1971) (“House Hearings”); Hearings Before the Subcommittee 
on Labor of the Senate Committee on Labor and Public Welfare, 92nd Cong., 
l s‘Sess.. 360-61 (1971) (“Senate Hearings”) (statement of Gerard Smetana). 
See Appendix A, attached, at A l-2 , A5, A9.



11

effective date of the Act—July 2, 1965.13

The assertion of the United States in this case that the 
two-year cap was designed for very limited circumstances 
(situations of equitable tolling and/or Department of Justice 
pattern or practice cases) (Brief of United States, 25) is not 
supported by the legislative history. That history contains 
repeated statements of concern by various members of 
Congress that a back pay cap was necessary to remedy the 
potential exposure of employers to the award of back pay from 
July 2,1965. That concern was much broader than the United 
States has suggested here. See, inter alia, testimony of 
Congressman Ellenbom (Appendix, A3-4, A8) and Senator 
Beall (Appendix Al l ) .

In sum, Congress adopted the two-year rule with the 
understanding that Title VII contained no anterior limitation on 
back pay awards other than the effective date of the statute. 
That was a correct reading of caselaw both before and after 
1972. Against that background members of Congress 
repeatedly expressed their understanding that section 706(g) (1) 
would constitute the statute of limitations in Title VII cases. 
(Appendix A3, A5-7, A10). The Department of Justice, 
disavowing the position it has taken for nearly three decades,14

13 See, e.g., the testimony of William H. Brown, Commissioner of 
the Equal Employment Opportunity Commission, that employers faced back 
pay liability from July 2, 1965, without limitation. (Appendix, A2).

14 Contrary to its position here, the United States has repeatedly 
asserted that the continuing violation doctrine authorizes relief for 
discriminatory acts occurring prior to the charge-filing period, with a cap of 
two years on back pay recovery. See, e.g., Brief of the United States at 50- 
51, Trout v. Lehman, 702 F.2d 1094 (D.C. Cir. 1983) (Nos. 81-2370, 82- 
1305), vacated and remanded on other grounds, 465 U.S. 1056 (1984) 
(“The ‘continuing violation’ doctrine provides a limited exception to the 
time limitations embodied in Title VII. A plaintiff may recover for



12

apparently insists that this interpretation was mistaken, that the 
charge-filing period has always been the limit on back pay, and 
that Congress intended that in all but exceptional cases the 
anterior limit would be either 180 or 300 days. It is, however, 
far too late to revisit the assumptions on which the 1972 
legislation was based, or to litigate whether the caselaw which 
prevailed in that era, and which the chairman of the EEOC 
expressly brought to the attention of Congress, was in error. 
“Whether that understanding of Congress was in some ultimate 
sense incorrect is not what is important in determining the 
legislative intent in amending the 1964 Civil Rights Act.” 
Brown v. General Services Administration, 425 U.S. 820, 828 
(1976).

In the 1972 Act, Congress dealt with two different time 
periods. It increased the time period for invoking the 
administrative process and it imposed a two year cap on back 
pay relief. In so doing, it expressly endorsed existing case law 
which treated some violations as continuing in nature, and 
further stated, in the authoritative Section-by-Section analysis 
by Senator Williams, that in so amending Title VII, existing 
case law treating certain types of violations as continuing in 
nature were “not affected.” (Appendix, A12). That is, the 
charge-filing period was not to be treated as a bar to relief in 
cases involving continuing violations, as the courts had not 
treated it as a bar in cases predating the 1972 Act.

discrimination which occurred outside the relevant time period, if  that 
discrimination was part o f a policy or practice of discrimination which 
continued into the relevant time frame. E.g., Jewett v. ITT Corp., 653 F.2d 
89, 91-93 (3rd Cir. 1981); Milton v. Weinberger, 645 F.2d 1070, 1075-77 
(D.C. Cir. 1981); Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 
711, 725 n.73 (D.C. Cir. 1978).”); See also Brief of United States at 28, 
United States v. City of Warren, 138 F.2d 1083 (6th Cir. 1998) (Nos. 97- 
1024, 97-1075).



13

II. THE INTERPRETATION OF TITLE VII NOW  
ADVANCED BY THE SOLICITOR GENERAL 
WOULD INVALIDATE EXISTING FEDERAL 
REGULATIONS AND DIRECTIVES.

The Solicitor General has in the instant case asserted 
that (except in exceedingly rare situations) it is the section 
706(e)(1) charge-filing period, not section 706(g), which 
controls the starting date for back pay calculations. (Brief of 
United States, 25). The United States acknowledges that this 
represents a repudiation of the longstanding position of the 
EEOC (Brief of United States, 23); it is also at odds with the 
generally accepted view of the law and the position the 
government has advanced for nearly three decades.15

In Brown v. General Services Administration, 425 U.S. 
at 828 n. 10, the plaintiff urged that federal employees should be 
permitted to bring employment discrimination claims under 
statutes other than Title VII. In opposing that contention, the 
United States advised this Court that in a Title VII action the 
commencement of the back pay period would be controlled by

I5Even defendant-employers filing amicus briefs in this Court have 
repeatedly insisted that the two-year rule in section 706(g) (1) governed the 
beginning of the back pay period. See, e.g., Brief on Behalf o f the Chamber 
of Commerce of the United States at 36 n.53, No. 74-389, Albemarle Paper 
Co. v. Moody, 422 U.S. 405 (1975) (No. 74-389) (“when an employer is 
charged with a Title VII violation, his potential liability for back pay 
extends backward two years prior to the date the charge is filed with the 
Commission, (section 706g).”); Brief of the Texas Association of Business 
at 12 n.16, Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977) (No. 76- 
99) (“back pay liability on all issues raised in the EEOC’s lawsuit extends 
back to March 9,1969, two years prior to the filing of the original charge”); 
id. at 17 n.29 (“Section 706(g) provides a limitation on back pay liability to 
two years prior to the filing of the charge.”).



14

the two-year rule in section 706(g)(1).16 The government 
objected that if federal workers could sue under statutes other 
than Title VII then “the district court may award back pay 
without regard to the two-year limit under Title VII.”17

In Occidental Life Insurance Co. v. EEOC, 432 U.S. 
355 (1977), the Solicitor General, in urging that the EEOC 
could bring an action more than 180 days after the filing of a 
charge, assured the Court that even where the EEOC delayed 
filing suit the magnitude of the total back pay award would be 
limited because “Congress has expressly limited employers’ 
liability for back pay to two years of a charge’s filing.”18

In its brief in the instant case, the government insists 
that this Court’s decision in Havens Realty Corp. v. Coleman, 
455 U.S. 363 (1982), did not adopt a continuing violation 
doctrine for cases under the Fair Housing Act, and thus 
provides no support for such a doctrine in Title VII cases. 
(United States Brief, 18). But in Havens Realty itself the 
Solicitor General urged the Court to adopt a continuing 
violation rule, and to do so precisely because that rule already 
existed in Title VII cases. (Brief for the United States, No. 80- 
988, pp. 9-10 n.9.). And in Lorance v. AT&T Technologies, 
490 U.S. 900 (1989), the United States characterized Havens 
Realty as having adopted a continuing violation doctrine that

16Brief for Respondents, No. 74-768, at 17-18 (“Section 706(g) 
authorizes the district court. . .  to grant. . . back pay for a period not to 
exceed two years prior to the filing of the initial administrative complaint.”).

11 Id. at 19.

18Brief for the EEOC, No. 76-99, at 39 (quoting EEOC v. 
Kimberly-Clark Corp., 511 F. 2d 1352, 1358 n. 9 (6th Cir. 1975)).



15

should be applied to Title VII cases. (Brief for the United 
States, No. 87-1428, p. 12.).19

Only four years ago the Department summarized the 
origins of the two-year back pay rule as follows:

As originally enacted, in 1964, Title VII contained no 
explicit limitation on back pay. For actions filed before 
the 1972 amendments to Title VII, courts therefore 
applied the most analogous state statute of limitations
to claims for back pay under the Act............ When
Congress amended Title VII in 1972, it added Section
706(g)-----In Albemarle, . . .  the Supreme Court noted
that in enacting the amendments in 1972, Congress 
rejected a provision that would have limited an 
employer’s back pay liability to two years prior to the 
filing of a complaint in court.

(Brief for the United States at 28, United States v. City of 
Warren, 138 F.2d 1083 (6th Cir. 1998) (Nos. 97-1024, 97- 
1075). Yet in this Court the government insists the adoption of 
section 706(g)(1) is of no real consequence to Title VII 
limitations.

Most significantly, the position of the Solicitor General 
conflicts with the regulations governing administrative 
complaints of employment discrimination by federal agencies, 
29 C.F.R. part 1614, and with Management Directive 110. The 
government urges this Court to adopt an interpretation of Title 
VII under which its own regulations, and Management

19Quite plainly, this Court in Havens Realty did permit recovery for 
acts prior to the start of the charge-filing period. Although all claims of 
plaintiff Coleman were prior to the charge-filing period, this Court 
concluded that the 180-day filing period “is no bar” because the claims of 
co-plaintiff Coles occurred within the 180-day period and the violation was 
a continuing one. Havens Realty, 455 U.S. at 380-81.



16

Directive 110, would necessarily be invalid. The approach 
taken by the Solicitor General is precisely backwards; the 
presumptive validity of the regulations and Management 
Directive 110 are of controlling importance in determining the 
correct interpretation of Title VII.

With regard to federal sector discrimination, the EEOC 
now exercises the government-wide rulemaking and 
adjudicatory authority originally accorded to the Civil Service 
Commission. Section 717(a) forbids the same discriminatory 
practices prohibited by section 703 of Title VII. Section 7 17(b) 
provides in part:

[T]he Equal Employment Opportunity Commission 
shall have authority to enforce the provisions of 
subsection (a) through appropriate remedies, . . . and 
shall issue such rules, regulations, orders and
instructions as it deems necessary and appropriate___
The head of each . . .  department, agency or unit shall 
comply with such rules, regulations, orders and 
instructions.

42 U.S.C. § 2000e- 16(b). With regard to federal sector 
discrimination, therefore, section 717(b) authorizes the EEOC 
to issue legislative regulations and orders and those regulations 
and orders not only constitute a permissible interpretation of 
the remedial provisions of Title VII itself but also embody 
interpretations of Title VII which are entitled to deference 
under Chevron U.S.C. Inc. v. Natural Resources Defense 
Council, Inc., 467 U.S. 837 (1984).

Management Directive 110 instructs federal agencies 
regarding the manner in which they are to handle administrative 
complaints of discrimination. The regulations require 
aggrieved employees or applicants to contact an EEO counselor 
within 45 days of the alleged discrimination. 29 C.F.R. § 
1614.105(a). Management Directive 110 provides that federal



17

agencies— including, of course, the Department of 
Justice— must apply a continuing violation doctrine in 
determining the scope of relief to be awarded for proven 
discrimination.

[IJncidents that occurred outside the 45-day time limit 
should be investigated and remedied to the extent that 
they are sufficiently interrelated to a timely raised 
incident such that a continuing violation has been 
established. A continuing violation is a series of related 
acts, one or more of which falls within the limitations 
period, that are tied together with a common theme 
uniting the alleged discriminatory acts into a continuous 
pattern. When determining if a continuing violation 
exists, the following information is relevant to, but not 
necessarily dispositive of, the issue: whether the same 
officials were involved in the incidents, whether the 
incidents were similar in nature, and whether they 
recurred or were of a more isolated nature.

(Management Directive 110, Ch. 5, part III(A) (3)); see 
http://www.eeoc.gov/federal/mdl 10.html). If, for example, a 
worker within the Department of Justice were to file a 
complaint of salary discrimination, Management Directive 110 
would compel the Attorney General to utilize this continuing 
violation doctrine in determining the period for which relief 
was required.

The Commission’s federal sector regulations impose the 
same obligation. An individual who demonstrates that he or 
she was the victim of discrimination is entitled to “[p]ayment 
. . .  on a make whole basis for any loss of earnings the person 
may have suffered as a result of the discrimination.” 29 C.F.R. 
§ 1614.501(a) (4). The only limitation on this make whole 
obligation is the two-year back pay rule. “[B]ack pay liability

http://www.eeoc.gov/federal/mdl


18

under Title V I I . . .  is limited to two years prior to the date the 
discrimination complaint was filed.” Id. at § 1614.501(c)(1).

The regulations provide that an administrative 
“complaint” is the equivalent of a Title VII charge. 29 C.F.R. 
§§ 1614.407 (time period for filing suit), 1614.501(c) (1) (date 
from which back pay limit is calculated.). The regulations 
structure the complaint filing process in a manner which utterly 
precludes any possibility that the time limit for filing an 
administrative complaint could define the period of time for 
which pre-complaint backpay or other relief could be awarded. 
The deadline for filing a complaint is only 15 
days— unimaginably short as a limitation period, and only one 
twentieth of the 300 day charge-filing period— and the deadline 
runs from the end of counseling, not from the occurrence of a 
discriminatory practice. 29 C.F.R. § 1614.106(b).

The regulations regarding class complaints are equally 
clear. Once there has been a finding of the existence of a class­
wide discriminatory policy or practice, “[r]elief otherwise 
consistent with this Part may be ordered for the time the policy 
or practice was in effect.” 29 C.F.R. § 1614.204(1)(3). The 
only back pay relief that would not be inconsistent with a 
provision of part 1614 would be back pay extending more than 
two years prior to the filing of the class complaint. See 29 
C.F.R. §§ 1614.501(b) (3), 1614.501(c)(1).

In promulgating these regulations, the EEOC has made 
clear that they embody the continuing violation doctrine also 
codified in Management Directive 110. Although the 
regulations require a discrimination victim to contact an EEO 
counselor within 45 days, that abbreviated time period does not 
limit the relief that can be accorded for a continuing violation.

Under the continuing violation theory . . . incidents 
occurring earlier than 45 days before contact with the 
counselor must also be remedied provided that the



19

initial contact with the counselor was timely and the 
earlier incidents were part of the same continuing 
policy or practice found to have been discriminatory. 
That is, where contact with the counselor is timely as to 
one of the events comprising the continuing violation, 
then the counseling contact is timely as to the entire 
violation.

64 Fed. Reg. 37653 (1999). Similarly, 29 C.F.R. § 1614.204(1) 
(3) requires a class agent to prove the existence of a 
discriminatory practice or policy in existence within 45 days of 
the initial contact with an EEO counselor. But once 
discrimination within that period has been shown, monetary 
relief is available for the full two-year period. “[T]he 45-day 
time limit in section 204(1) (3) defining the period for which 
class-wide discrimination can be found is not intended to limit 
the two-year time period for which back pay can be recovered 
by a class member.” 64 Fed. Reg. 37653 (1999); see 57 Fed. 
Reg. 12644 (1992).

III. DISQUALIFYING A PLAINTIFF FROM FULL 
RELIEF FROM A CONTINUING VIOLATION 
ON THE BASIS OF WHEN THE PLAINTIFF 
KNEW OR SHOULD HAVE KNOWN OF THE 
D ISC R IM IN A T O R Y  NATURE OF TH E  
EMPLOYER’S UNLAWFUL CONDUCT IS NOT 
SUPPORTED BY EITHER THE LANGUAGE OF 
THE ACT OR ITS LEGISLATIVE HISTORY.

Both the petitioner and the United States propose that 
this Court impose upon Title VII’s continuing violation 
doctrine a disqualification from relief based upon the date when 
a victim of a continuing pattern or practice of discrimination 
first appreciates the discriminatory nature of his/her employer’s 
conduct. (Brief of United States, 17; Brief of Petitioner, 40-



20

44). A number of court of appeals have adopted such tests. 
See, e.g., Berry v. Board of Supervisors o f L.S.U., 715 F.2d 
971, 981 (5th Cir. 1983) (Does the act “have the degree of 
permanence which should trigger an employee’s awareness of
and duty to assert his or her rights___”); Malhotra v. Cotter &
Co., 885 F.2d 1305,1310 (7th Cir. 1989) (Did the plaintiff have 
“no reason to believe he was a victim of discrimination.. . . ”); 
Sabree v. United Brotherhood o f Carpenters & Joiners, 921 
F.2d 396,402 (1st Cir. 1990) (“What matters is whether, when 
and to what extent the plaintiff was on inquiry notice.”). 
However, some courts still apply the continuing violation 
doctrine without imposing such a disqualification. See, e.g., 
Kuhnle Bros., Inc. v. County o f Geauga, 103 F.3d 516,522 (6th 
Cir. 1997) (applying three-part test of Baker v. F & F 
Investment Co., 489 F.2d 829, 836 (7th Cir. 1973)).

The Act itself contains no provision articulating such a 
limitation. Nor was such a test included in the initial Title VII 
continuing violation doctrine adopted by the courts prior to the 
1972 Amendments. See, e.g., cases cited supra, n.6. Indeed, 
the court of appeals cases applying the continuing violation 
doctrine throughout the 1970s and early 1980s did not include 
a test of whether or not the plaintiff had knowledge (or should 
have had knowledge) of the discriminatory nature of the 
employer’s practices at the plain tiffs earliest exposure to that 
unlawful activity.20 Nor is such disqualification a part of the

20 E.g., Guardians Ass’n o f New York City v. Civil Serv. Comm’ n, 
633 F.2d 232, 237-38, 247-51 (2d Cir. 1980), a jfd  463 U.S. 582 (1983) 
(providing relief for discriminatory acts occurring prior to the 300-day 
charge-filing period in case challenging City’s use of discriminatory 
employment tests without inquiry into plaintiffs knowledge); White v. 
Carolina Paperboard Corp., 564 F.2d 1073,1082,1087 (4th Cir. 1977) (In 
challenge to discriminatory promotion system, court affirmed award of back 
pay starting in 1967 on basis of EEOC charges filed in 1969 without a test 
of plaintiffs earlier knowledge); Crawford v. Western Electric Co., 614



21

continuing violation test adopted by this Court in Havens 
Realty.

The engrafting of such a barrier to relief onto the statute 
is inconsistent with Congressional purpose. Such a 
requirement is directly contrary to the “make whole” purpose 
of the Act. As this Court has repeatedly observed, “the scope 
of relief under . . .  the Act is intended to make the victims of 
unlawful discrimination w h o le .. . and requires that persons

F.2d 1300, 1309 (5th Cir. 1980) (holding that back pay accrued from two 
years prior to the charge for actions preceding the two-year cap so long as 
current violation was shown; no inquiry into plaintiffs knowledge of 
discriminatory nature of defendant’s practices); Hall v. Ledex, 669 F.2d 397, 
398 (6th Cir. 1982) (Upon showing of continuing violation, court properly 
awarded back pay for promotion action occurring in April, 1974, more than 
300 days prior to filing of charge on May 9, 1975; no inquiry into what 
plaintiff knew or should have known); Patterson v. Youngstown Sheet & 
Tube Co., 659 F.2d 736, 740 (7th Cir. 1981) (applying two-year limitation 
on back pay to private plaintiffs challenge to continuing discriminatory 
promotion system; no test of plaintiffs prior knowledge of discrimination); 
Williams v. Owens-Illinois, 665 F.2d 918, 924 (9th Cir. 1982) (Upon 
showing of a continuing discriminatory policy in promotions and job 
placements, plaintiffs were entitled to “base claims” upon discriminatory 
acts occurring prior to charge-filing period; no inquiry into plaintiffs prior 
knowledge); Rich v. Martin Marietta, 522 F.2d 333, 348 (10th Cir. 1975) 
(rejecting application of 90-day charge-filing period rather than two-year 
period as limit of relief for continuing violation o f act in promotion case 
brought by private plaintiff; no test of plaintiffs prior awareness of 
discrimination); Stallworth v. Schuler, 111 F.2d 1431,1435 (11thCir. 1985) 
(affirming award o f back pay for two years prior to EEOC charge for high 
school principal’s claim of continuing pattern of discrimination in 
promotions; no test as to plaintiffs notice); Shehadeh v. Chesapeake & 
Potomac Tel. Co., 595 F.2d 711, 723-26 (D.C. Cir. 1978) (employer’s 
continuous campaign of negative references, beginning after termination of 
plaintiffs employment in 1968 constituted continuing violation for which 
relief could be granted based upon 1973 EEOC charge; no inquiry into 
plaintiff s prior awareness of discriminatory nature of defendant’s conduct).



22

aggrieved. . .  be so far as possible, restored to a position where 
they would have been were it not for the unlawful 
discrimination.” Albemarle Paper Co. v. Moody, 422 U.S. at 
421 (quoting Section-by-Section Analysis by Senator Williams 
related to the 1972 Act, 118 Cong. Rec. 7168 (1972)). See also 
Teamsters v. United States, 431 U.S. 324, 364 (1977) (“An 
equally important purpose of the Act is ‘to make persons whole 
for injuries suffered on account of unlawful employment 
discrimination.’ (citing Albemarle Paper, at 418)). In 
determining the specific remedies to be afforded, a district 
court is ‘to fashion such relief as the particular circumstances 
of a case may require to effect restitution.’” (citing Franks v 
Bowman Transp. Co., 424 U.S. 747, 764 (1976)).

Further, the imposition of this additional test places 
upon the victim the cost of an employer’s ongoing course of 
discriminatory conduct under the guise of protecting the 
employer from stale claims. However, because the continuing 
violation doctrine requires a timely charge, there is no issue of 
staleness, and there is no need otherwise to protect the 
employer against staleness. In the 1972 Act, Congress 
determined the extent to which a wrongdoer would be held 
liable for its unlawful conduct and settled upon a two-year limit 
for continuing violations. That is a legislative choice based 
upon a balancing of interests and is a choice that the federal 
courts should not alter.

The continuing violation doctrine applies only in 
limited circumstances. It does not apply to instances where an 
employer engages only in an isolated act of discrimination. 
Rather, it applies to those instances where an employer engages 
in a pattern or policy of discrimination, or a series of related 
discriminatory acts. In such circumstances, the employer has 
the means to relieve itself from the reach of the doctrine— the 
employer need only stop violating the law. To penalize a 
plaintiff for not invoking the administrative process at the



23

earliest instances of discrimination places the burden of 
stopping discrimination upon the victim of discrimination. 
That burden is more appropriately assigned to the 
wrongdoer—the employer. The doctrine, after all, applies only 
to an employer who is violating the law by continuing a 
discriminatory policy, or engaging in a pattern or series of 
discriminatory acts and has within its own power the ability to 
end its exposure to the doctrine by ending the unlawful 
discrimination.

Two courts of appeals have reached similar conclusions 
in considering the underlying purposes of the continuing 
violation doctrine. Roberts v. North American Rockwell Corp., 
650 F.2d 823 (6th Cir. 1981) (“Title VII advances important 
federal goals. To require that suit be filed at the first instance 
of discrimination or not at all would frustrate Title VII. Broad, 
remedial acts such as Title VII should be liberally construed to 
encourage the eradication of discrimination.”); Belt v. Johnson 
Motor Lines, Inc., 458 F.2d 443, 445 (5th Cir. 1972) (“We 
cannot agree with the district court that a discriminatory labor 
practice may not be a continuing act. To so hold on the facts of 
this case would permit discriminatory acts to go unrebuked, a 
construction far too restrictive and alien to the liberal 
construction we have previously given the Civil Rights Act of 
1964.”).

This Court should reject imposition of this 
inappropriate restriction upon relief under Title VII of the Civil 
Rights Act.

CONCLUSION

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



24

Respectfully submitted,

E r ic  S c h n a p p e r  
U n iv e r s it y  o f  

W a s h in g t o n  S c h o o l  
o f  L a w

1100 N.E. Campus Way 
Seattle, WA 98105 
(206)616-3167

E l a in e  R. Jo n e s  
Director Counsel 
T h e o d o r e  M . S h a w  
N o r m a n  J. C h a c h k in  
Ja m e s  L. C o t t  

*R o b e r t  H. S t r o u p  
N a a c p  Le g a l  D e f e n s e  a n d  

E d u c a t io n a l  F u n d , In c . 
99 Hudson Street, 16th Floor 
New York, NY 10013-2897 
(212) 965-2200

* Counsel o f Record 
Attorneys for Amicus Curiae 

Dated: October 29, 2001

*



APPENDIX



APPENDIX A

THE LEGISLATIVE HISTORY OF THE EQUAL 
EMPLOYMENT OPPORTUNITY ACT OF 1972

The initial impetus for the two-year rule apparently came 
from employers.1 At the March 1971 House hearings a witness 
appearing in connection with testimony of the American Retail 
Federation submitted a written statement containing language 
of a proposed amendment limiting back pay to a period 
beginning two-years prior to the filing of the complaint.2 The 
accompanying explanation objected that the lack of any 
limitations period was unfair to employers.

Unless a reasonable limitation is placed upon the 
ability of plaintiffs to recover past damages . . .  frivolous 
and totally unnecessary lawsuits will be encouraged. The 
possibility of enormous monetary liability under Title VII, 
especially in view of the increased use of class-type suits, 
regardless of the actual liability of the charged party, is 
clear.3

‘See George T. Sape & Thomas J. Hart, Title VII Reconsidered: 
The Equal Employment Opportunity Act of 1972, 40 GEO. WASH. L. REV. 
824, 881 (1972).

2Hearings Before the General Subcommittee on Labor of the 
House Committee on Education and Labor on H.R. 1746, 92nd Cong., 1st 
Sess. 476 (1971)("House Hearings")("No order made hereunder by any 
court shall include back pay or other liability which has accrued more than 
two years before the filing of a complaint with said court under this Title.")

3House Hearings at 281.



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A two-year limitations period, the statement explained, 
would be "consistent with provisions contained in the Fair 
Labor Standards Act, the Walsh-Healy Act, the Bacon-Davis 
Act and the Equal Pay Act."4

Representative Erlenbom raised the issue during the 
testimony of the chairman of the EEOC.

Mr. Erlenbom. At what point is this back pay 
award determined and is there any statute of limitations 
as to how far back you can go in the back pay award?

Mr. Brown. Under the court decisions we can 
go back to the beginning of the act.5

Erlenbom argued that the lack of a limitations period was 
wrong, and would become increasingly unfair in the future as 
the number of years since 1965 rose.

It seems to me that this class action and back 
pay award, that whole thing, has grown by practice and 
court decisions, and Congress has not turned its 
attention to this sufficiently. Under the NLRB there are 
limitations as to how far back pay awards can be made, 
or at what point back pay liability attaches. It seems to 
me Congress ought to turn its attention to some similar 
limitations in this area . . . .  Should we, because no 
charge is made until 1985, have the employer in 1985 
be liable for back pay to 1965, or isn't it reasonable to 
have some statute of limitations?6

4W.

5Id. at 89.

Hd. at 89-90.



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Chairman Brown defended the absence of a limitations 
period, arguing that "as the back pay awards grow . . .  there is 
going to be a growing likelihood that we are going to be able to 
settle more cases."7

Representative Erlenbom in response reiterated his 
objections.

[T]here could be come reasonable limitation as to how 
far back the liability attaches. Now, we are talking about 
1985. We could be talking about the year 2000 or beyond, 
with the liability still running back to the day the statute 
was enacted, which seems to me a bit unreasonable.. .  . 
[W]e should have a statute of limitations.8

The witness whose prepared statement had raised the issue 
strongly agreed with Erlenbom.

I do propose a statute of limitations. I think the 
example that Chairman Brown gave in the colloquy with 
Congressman Erlenbom was a terrible one. If I think of 
Sears having to set up reserves up to the year 2000 because 
of possible liabilities, because in that year one could still 
go back to 1964, it would be a difficult situation to 
administer. So I would propose, as has worked under the 
Fair Labor Standards Act, then a 2-year statute of 
limitations, 2 years from the time a complaint is filed.9

7 Id.

%Id.

9Id. at 284-85.



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Representative Erlenbom repeated his earlier objections 
and disagreement with Chairman Brown.10

Several weeks later, Representative Erlenbom introduced 
H.R. 6760, which would ultimately be adopted by the House in 
place of the Committee bill. H.R. 6760 included a two-year 
back pay limitation that was identical to the language proposed 
at the earlier hearing:

No order made hereunder shall include back pay or 
other liability which has accrued more than two-years 
before the filing of a complaint with said court under this 
title.

The United States Chamber of Commerce strongly 
endorsed this proposal.

[Perm itting back-pay awards to date from the 
effective date of the Act, July 2, 1965, until final 
settlement is simply an attempt to coerce employers and 
unions through the threat of enormous liability into 
waiving their rights to a fair hearing.

In other areas of law in which liability attaches, an 
injured or aggrieved party must take reasonably prompt 
action to enforce his rights. Back-pay awards should not 
be used as a form of punishment. We therefore support the

l0Id. at 286 ("The problem that I discussed with the Chairman of 
Equal Employment Opportunity Commission is the lack o f a statute of 
limitations . . .  [Pjersonal injury or property damage claims or almost any 
other kind o f cla im . . .  all have a limitation through a statute o f limitations 
or the doctrine o f  laches. It would seem to me there is no reason why the 
same sort of approach should not be used in the case of these back pay 
claims and class actions, which, unfortunately, at the present time, do not 
have any sort o f limitations. I just can't buy Chairman Brown's position that 
in the year 2050 a claim can run back to 1964, and I think that Congress 
should turn its attention to this problem.")



A5

am endm ent. . .  contained in H.R. 6760 to set a two-year 
limit on back-pay liability. This provision, modeled upon 
the limitations contained in the Fair Labor Standards Act, 
is neither unreasonable with respect to the liability of a 
respondent nor burdensome upon a complainant.11

When the full committee took up the bill in May of 1971, 
however, it approved H.R. 1746, sponsored by Representative 
Hawkins, rather than H.R. 6760, and rejected a proposal to add 
a two-year limitation to H.R. 1746 itself.

Over the course of the summer of 1971 Representative 
Erlenbom and others lobbied members of the House to support 
H.R. 6760 (also reintroduced as H.R. 9247)12 when it was 
offered as a substitute for H.R. 1746. In July Erlenbom placed 
in the Congressional Record an explanation of his proposal:

As indicated in testimony before the House General 
Labor Subcommittee by EEOC Chairman Brown, 
remedies for discriminatory acts may reach back to the 
effective date of the Act, July 2,1965. Arguments that the 
threat of enormous back pay liability will encourage 
conciliations are simply attempts to coerce employers and 
labor organizations into surrendering to the administrative 
process fundamental rights to a fair hearing and due 
process of law. Back pay awards should measure 
compensation, not punishment. Section 706(f) has been 
amended by the bill to limit liability to two-years 
preceding the filing of a complaint in court, following the 
pattern of the minimum wage law.13

"Id. at 476.

12The two-year limitations provision of H.R. 9247 was identical to 
that in H.R. 6760.

I3117 CONG. Re c . 26555 (1971).



A6

These repeated objections to the lack of a limitations 
period in Title VII evidently generated considerable opposition 
to the Hawkins bill. At the beginning of House debate on the 
legislation, Representative Dent offered on behalf of the 
supporters of H. R. 1746 an amendment that would have 
limited the retrospective reach of back pay to two-years before 
the filing of the charge with the EEOC.14 Congressman Dent 
explained that the

amendment would impose a 2-year "statute of limitations" 
on the awarding of back pay and reinstatement under 
[TJitle VII. Thus, if the EEOC or, in the case of an 
individual action, the Court, found that an unlawful 
employment practice existed, back pay liability could not 
be extends [szc] further than 2 years from the time the 
charge was filed with the Commission.15

Other supporters of H.R. 1746 also described the 
amendment as establishing a "statute of limitations."16 This 
amendment was required, according to Dent, because under 
Title VH as originally enacted back pay awards could reach 
back to July, 1965.

Today you go back to the date of the passage of the act and 
you could very easily create an injustice greater than the 
justice you were giving or trying to give. So we have a

14"No order made hereunder shall include backpay or reinstatement 
liability which has accrued more than two-years before the filing of a charge 
with the Commission." 117 Cong. Rec . 31784 (1971) (remarks of Rep. 
Dent).

15117 CONG. r e c . 31784 (1971) (remarks of Rep. Dent).

16117 CONG. rec . 31961 (1971) (remarks of Rep. Perkins).



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statute of limitations.17

The difference between the Dent proposal and the language 
in the Erlenbom bill was of considerable importance, because— 
as was repeatedly stressed during the hearings and debates—in 
this era the average Title VII charge was pending at the EEOC 
for some 20 months.18

Representative Erlenbom reiterated his earlier criticism of 
the lack of a limitations period in Title VII. Class actions, he 
warned,

plus the liability of back pay without limitation, would 
create an horrendous potential liability. We would provide 
a limitation on liability through a 2-year statute of 
limitations. I would admit that the majority . . .  has said, 
belatedly, that if they are given the opportunity, they would 
also apply a 2-year statute of limitations.19

Several members of the House expressed agreement with 
the position of Chairman Brown that back pay should continue 
to run (where the discriminatory practice was that old) from the 
effective date of Title VH. Representative Stokes denounced 
the Erlenbom proposal as a scheme to "minimize damage 
awards against discriminating employers and unions. . .  a great 
leap backward in our struggle for equal employment 
opportunity."20 Representative Abzug explained that she 
disagreed with even the Dent proposal, but was willing to

17117 CONG. Re c . 31979 (1971) (remarks o f Rep. Dent).

nSee, e.g., H.R. REP. No. 92-238 (1971), reprinted in 1972 
U.S.C.C.A.N. 2137, 2170-71 (Minority Views).

19117 CONG. Rec. 31973 (1971) (remarks of Rep. Erlenbom).

20117 Cong. Re c . 32106 (1971) (remarks o f Rep. Stokes).



A8

accept it if necessary to win passage of the rest of H.R. 174621.

The most controversial difference between the Hawkins 
and Erlenbom proposals concerned what type of enforcement 
authority to give to the EEOC. Under H.R. 1746 the 
Commission would have been given the power to issue cease 
and desist orders to be enforced, like orders of the NLRB, by 
the courts of appeals. H.R. 6760, on the other hand, would 
have authorized the EEOC to bring civil actions in federal 
district court, the type of enforcement mechanism ultimately 
adopted. After a debate that focused primarily on this issue, the 
House voted by a narrow margin to adopt the Erlenbom bill as 
a substitute for the Hawkins bill that had been reported by the 
committee.

In the Senate hearings which followed, the key House 
proponents of a two-year limitation renewed their arguments. 
Representative Erlenbom described Chairman Brown's House 
testimony "that the EEOC's position is that remedies, including 
back pay, may reach back to the effective date of the Act, July 
2,1965. Although it is not clear, indications are that the courts 
have held similar positions."22 Erlenbom explained that the 
House-passed bill "imposes a limitation on liability. A similar 
limitation exists in the National Labor Relations Act and the 
Fair Labor Standard[s] Act. This limit on liability would be 2 
years prior to the filing of the complaint with the court."23 The 
American Retail Federation complained that S. 2515, which 
had been proposed by Senator Williams, did nothing to address

21117 C o n g . Rec. 32097 (1971) (remarks o f Rep. Abzug).

22Hearings Before the Subcommittee on Labor o f the Senate 
Committee on Labor and Public Welfare, 92nd Cong., lst.Sess. 189(1971) 
("Senate Hearings.")

23Senate Hearings at 173.



A9

the lack of a statute of limitations under Title VII.

S. 2515 makes no provision whatever for any 
limitation upon recovery. This failure is wholly 
inconsistent with provisions contained in the Fair Labor 
Standards Act, the Walsh-Healy Act, the Davis-Bacon Act, 
and the Equal Pay Act. The result is that an unknown or 
inadvertent violation of the Act could permit a recovery to 
the effective date of the Act. Thus, for example, in the 
year 2000 suit could be filed seeking recovery back to 
1965. Assuming the number of plaintiffs were large 
enough and the cause were meritorious, it is doubtful that 
any company or union in the United States could survive 
the amount of the judgment.

Experience with liability limitation standards have in 
other comparable areas led to rapid settlement and greater 
uniformity of compliance with statute's requirements.. . .  
A two-year statute of limitations also should have the 
statutory effect of diminishing agency backlog.24

The United States Chamber of Commerce also objected to 
continuing to permit back pay awards to run from July 2, 
1965.25

In the Senate committee a consensus was reached in favor 
of a two-year back pay limitation, and S. 2515 was amended in

“ Senate Hearings at 360-61 (statement of Gerard Smetana).

“ Senate Hearings at 496 ("permitting back-pay awards to date from 
the effective date of the act, July 2,1965, until final settlement is simply an 
attempt to coerce employers and unions through the threat of enormous 
liability into waiving their rights to a fair hearing. In other areas of law in 
which liability attaches, an injured or aggrieved party must take reasonably 
prompt action to enforce his rights. Back-pay awards should not be used as 
a form o f punishment. We therefore support the amendment to . . .  set a 
two-year limit on back-pay liability.")



A10

committee to bar back pay awards accruing more than two- 
years prior to the filing of the EEOC charge.26 The limitation 
in the committee bill, however, applied only to orders issued by 
the EEOC, and did not limit judicial awards in cases litigated 
in federal court.27

In the legislative process that followed, both supporters of 
S. 2515, and those who preferred the House bill, consistently 
referred to the two-year rule (not the charge filing period) as 
establishing the retrospective limit on back pay. Although 
under S. 2515 the EEOC could adjudicate Title VII claims, the 
Senate Report explained, "[i]n issuing its order, the 
Commission, in any situation involving back pay, would be 
limited to an award of two-years prior to the date of the filing 
of the charge with the Commission."28 Senator Dominick, 
although opposing the provision in S. 2515 authorizing EEOC 
to award back pay, approved its provision for "a 2-year 
limitation of back pay liability."29 Senator Williams placed in 
the Congressional Record an analysis of the Committee bill 
which noted that "[a]n award of back pay is not to exceed that 
which has accrued more than two-years prior to the filing of a 
charge with EEOC."30

26118 CONG. Rec. 1071 (1972) (remarks of Sen. Beall).

27S. Rep. N o. 92-415 at 58 (1971).

28S. REP. No. 92-415 at 20 (1971); see id. at 38 ("back pay liability 
is limited to two-years prior to the filing o f a charge with the Commission").

29117 C o n g . Rec. 39739 (1971) (remarks of Sen. Dominick on
Amendment 611); see 118 CONG. REC. 302 (1972) (remarks of Sen. 
Dominick) (his amendment does not affect "the 2-year limitation of back 
pay liability.").

30 118 CONG. REC. 1071 (1972) (remarks o f Sen. W illiam s).



A ll

The extended Senate debates which followed, like the 
House debates, centered on whether to give the EEOC cease 
and desist authority. Opponents of that proposal favored a 
substitute bill offered by Senator Dominick. Although 
Dominick assumed that a two-year back pay limitation was in 
his bill, that limitation was inadvertently omitted. Eventually 
Senator Beall, a supporter of S. 2515, pointed out that 
omission, and offered an amendment to the Dominick bill that 
was accepted by Dominick and approved unanimously.31 The 
Dominick bill did not permit the EEOC to make back pay 
awards; the Beall amendment applied to judicial awards and 
(like the Dent amendment) ran from the date on which the 
charge was filed. The language of the brief debate reflected the 
Senate consensus about the length of the pre-charge period for 
which back pay could fairly be awarded.

MR. BEALL___ [Sjhould there be a finding in favor
of the plaintiff in one of these cases, we want to make sure 
that the penalty is within the balance of fairness. In the 
committee, there was an agreement that should there be a 
finding, any award of back pay liability should not go back 
further than 2 years prior to the time that the charges were 
brought before the Commission.32

After extended debate a compromise was agreed upon by 
Williams, Dominick, and their supporters. Under the 
compromise proposal regarding back pay, awards were limited 
to the period beginning two-years prior to the filing of the 
charge with the EEOC. Without objection, Senator Williams 
placed in the Congressional Record a detailed section-by­

31The language of that amendment, like the final bill, limited back 
pay to amounts accruing less than two-years before the filing of the Title VII 
charge. 118 CONG. REC. 1071 (1972)

32W .



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section analysis of the final compromise language. Williams 
described only the two-year rule, not the modified charge filing 
period, as limiting the amount of back pay.

The court's award of back pay is limited to that which 
accrues from a date not more than two-years prior to the
filing of a charge with the Commission___The provisions
of this subsection are intended to give the court wide 
discretion, as has been generally exercised by the courts 
under existing law, in fashioning the most complete relief 
possible. In dealing with the present section 706(g) the 
courts have stressed that the scope of relief under that 
section of the act is intended to make the victims of 
unlawful discrimination whole, and . . .  so far as possible, 
restored to a position where they would have been were it 
not for the unlawful discrimination. The broad reading of 
the need for effective remedies under this subsection is 
intended to be preserved in this bill.33

The bill also increased the charge filing period to 180 days, 
or 300 days in a deferral state. The explanation of the modified 
charge filing period was consistent with this account of the 
two-year back pay rule.

In establishing the new time period for the filing of 
charges, it is not intended that existing law, which has 
shown an inclination to interpret this type of time 
limitation to give the aggrieved person the maximum 
benefit of the law, should be in any way circumscribed. 
Existing case law which has determined that certain types 
of violations are continuing in nature, thereby measuring 
the running of the required time period from the last 
occurrence of the discrimination and not from the first

33118 CONG. Rec. 4942 (1972) (remarks of Sen. Williams just 
before final passage).



A13

occurrence is continued.34

In the conference which followed, the critical relevant 
difference between the House and Senate bills was that under 
the Erlenbom substitute the two-year period ran from the date 
on which the complaint was filed in court, while in the Senate 
version that period ran from the filing of the charge with the 
EEOC. That difference was resolved in favor of the Senate 
version. The Conference Report explained:

The court is authorized to award back pay except that 
such back pay liability is limited to that which accrues 
from the date not more than two years prior to the filing of 
a charge with the Commission.35

When he reported the conference bill to the Senate, 
Senator Williams again placed in the Congressional Record a 
section-by-section analysis. That analysis contained an 
explanation of the two-year limitation rule and the new charge 
filing period, and an endorsement of the continuing violation 
doctrine, that was identical to his earlier section-by-section 
analysis.36 In the House, Representative Quie expressed 
particular regret that the two-year statute of limitations ran from 
the date of the charge rather than the commencement of the 
lawsuit.

The part I feel especially is bad is the feature on the 
statute of limitations in this bill, which is not 2 years prior 
to enactment of this bill, but rather 2 years prior to the

34 118 CONG. Rec. 4940 (1972) (remarks of Sen. Williams); see 
118 CONG. Rec. 4941 (1972) (“In any area where the new law does not 
address itself,. . .  it is assumed that the present case law as developed by the 
courts shall continue to determine the applicability of Title VII.")

35 S. CONF. Rep . No. 92-681 at 19 (1972); H.R. Conf. Rep. No. 92-
899 at 19 (1972), reprinted in 1972 U.S.C.C.A.N. 2179, 2183.

36118 CONG. REC. 4942 (1972) (remarks o f Sen. W illiam s).



A14

charge being brought by anyone. Some of those may have 
been pending for 2 or 3 years already, so we are talking 
now of probably 5 years in which back pay can be 
requested.

I just do not think that was a wise decision. I think the 
House would have stood by the position of those of us who 
felt that this was unwise, and that the 2-year statute of 
limitations in this bill should have been 2 years prior to the 
enactment of the act. I think that would have been 
advisable.37

No member of the House disagreed with Quie's description 
of the bill or suggested that the limitation period would 
ordinarily be 180 or 300 days.

37118 C o n g . R e c . 7569-70 (1972) (remarks o f Rep. Quie).