On petition for writ of certiorari to the United States Court of
Appeals for the Seventh Circuit.
The petition for writ of certiorari is denied.
Justice WHITE, with whom Justice BRENNAN and Justice MARSHALL
join, dissenting.
In this Title VII case, the Court of Appeals for the Seventh
Circuit substantially reduced an award of backpay because the
petitioner did not seek a right-to-sue letter from the Equal
Employment Opportunity Commission while the Commission was
attempting to resolve the grievance through conciliation. The
decision conflicts directly with the position of the Fifth Circuit,
indirectly with that of the Ninth Circuit, possibly misreads this
Court's decisions, and definitely leaves Title VII plaintiffs
confused as to their responsibilities under the Civil Rights Act of
1964. I would grant certiorari to resolve the conflict and, it is
hoped, to clarify the situation.
Title VII of the Civil Rights Act of 1964, as amended by the
Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42 U.S.C.
2000e et seq. , establishes procedures by which aggrieved parties
may seek relief from unlawful discrimination. The Act provides that
charges first be
Page 454 U.S.
1060 , 1061
brought to the Equal Employment Opportunity Commission within
180 days of the alleged violation. 2000e-5(e). If the Commission
dismisses the charge or issues a right-to-sue letter, the party may
bring an action in federal court within 90 days. 2000e-5(f)(1)(A).
Regulations under the Act provide that after 180 days from the
filing of a complaint with the Commission, a person can request a
right-to-sue notice which "the Commission shall promptly issue." 29
CFR 1601.28(a) (1980). Nothing in the Act or its accompanying
regulations requires that such a request be made within a certain
time, or, for that matter, that it be made at all.
The petitioner, a lawyer, was refused employment by respondent
because, as she was told in just so many words, the company was
looking for a man. That same day petitioner filed her complaint
with the Commission. Although petitioner could have requested a
right-to-sue letter 180 days later, she waited for over four years
while the Commission pursued the grievance through conciliation.
That process apparently was unsuccessful and, on January 3, 1974, a
right-to-sue letter was issued. Fifteen days later, petitioner
filed suit in Federal District Court, which upheld her claim and
awarded various prospective relief as well as backpay of over
$100,000 dating from the filing of charges in 1969. The Court of
Appeals for the Seventh Circuit agreed that the respondent was
liable for sex discrimination, but objected to the backpay award
because the petitioner allowed her complaint to "lie dormant" with
the Commission for over four years when she could have obtained a
right-to-sue letter upon request. The District Court was directed,
on remand, to reduce the backpay award for the time during which
petitioner could have requested a right-to-sue letter from the
Commission.
603 F.2d
598, 603.
The Fifth Circuit has expressly declined to rule that Title VII
plaintiffs must make a timely request for a right-to-sue letter or
lose the right to substantial backpay relief. In two
Page 454 U.S.
1060 , 1062
recent cases, one involving a 9-year delay between the filing of
charges and the issuance of a right-to-sue letter, Bernard v. Gulf
Oil Co.,
596 F.2d
1249 (1979), aff'd and modified on other grounds,
619 F.2d
459 (1980) ( en banc), aff'd,
452 U.S. 89 (1981), and
the other involving a claim pending before the Commission for five
years, Fowler v. Blue Bell, Inc.,
596 F.2d
1276 (1979), the court reasoned that the plaintiff was entitled
to await completion of conciliation efforts before filing suit. "A
plaintiff cannot be penalized for choosing . . . the legislatively
and judicially favored method of relying on the administrative
processes of the EEOC." 596 F.2d, at 1257. The Fifth Circuit
refused to find cause to invoke laches * in the plaintiffs' failure
to request a right-to-sue letter from the Commission.
In this case, the court did not refer to the Fifth Circuit
cases, or any cases within its own Circuit, but looked instead to
dictum in a Ninth Circuit decision that the "complainant should not
be permitted to prejudice the employer by taking advantage of the
Commission's slowness in processing claims or by procrastinating
while being aware that the Commission intends to take no further
action." Lynn v. Western Gillette, Inc.,
564
F.2d 1282, 1287 (1977) (footnote omitted). Notwithstanding this
language, the decision in Lynn was that the statutory 90-day period
within which an aggrieved party must file a Title VII action does
not begin to run until receipt of a right-to-sue letter and
notification that the Commission's conciliation efforts have
failed.
Page 454 U.S.
1060 , 1063
This Court has said that a trial court may restrict or even deny
backpay when "a Title VII defendant is . . . prejudiced by a
private plaintiff's unexcused conduct of a particular case."
Occidental Life Insurance Co. v. EEOC,
432 U.S.
355, 373, 2458 (1977); Albermarle Paper Co. v. Moody,
422 U.S. 405, 424-425,
2374-2375. Here, it is at least arguable that petitioner's patience
in awaiting completion of conciliation efforts is not to be
considered "unexcused conduct" in light of the "federal policy
requiring employment discrimination claims to be . . ., whenever
possible, administratively resolved before suit is brought in a
federal court." 432 U.S., at 368. In authorizing the Commission to
initiate its own suits, Congress hoped that "recourse to the
private lawsuit will be the exception and not the rule, and that
the vast majority of complaints will be handled through the offices
of the [Commission]." 118 Cong.Rec. 7168 (1972). "It is assumed
that individual complainants . . . would not cut short the
administrative process merely to encounter the same kind of delays
in a court proceeding." H.R.Rep.No. 92-238, p. 13 ( 1971), 1972
U.S.Code Cong. & Admin.News, pp. 2137, 2147-2148.
The conflict between the Circuits is plain. It is also apparent
that if a Title VII plaintiff should pay a price for awaiting the
outcome of conciliation efforts, that result should be made
unmistakably clear. I would grant certiorari.
Footnotes
[
Footnote *] The respondent suggests
a meaningful distinction exists between the Fifth Circuit's refusal
to invoke laches and the Seventh Circuit's reduction of backpay.
The distinction is not persuasive, as the Seventh Circuit seems to
recognize. See EEOC v. Massey-Ferguson, Inc.,
622
F.2d 271, 275 (1980). Both doctrines are governed by the same
equitable considerations. It would be little comfort to a Title VII
plaintiff to know that a court will not bar a claim but only
substantially limit the amount of recovery. The use of either would
leave aggrieved parties confused as to whether they can await the
Commission's action or must press for permission to file suit. The
cases cannot be reconciled on this basis.
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