Warren E. Burger: We'll hear arguments next in Oscar Mayer & Co against Evans. Mr. Gladden I think you may proceed whenever you are ready.
James W. Gladden, Jr.: Thank you Mr. Chief Justice, and may it please the Court. The issue presented in this case is whether under Section 14(b) of the Age Discrimination and Employment Act, when a state has a law which prohibits age discrimination and employment and has established an agency and power to grant relief from such practices, must a claim of age discrimination first be filed with that state agency before the claimant may initiate an action in Federal Court. The facts of this case maybe stated very briefly. Respondent Joseph Evans retired in January 1976 from his position as hog buyer for Oscar Mayer in Iowa. In March, 1976, Mr. Evans filed a notice of intent to sue with the United States Department of Labor claiming that he had been forced to retire in violation of the Age Discrimination Act. At the time of Mr. Evans alleged forced retirement, the Iowa Civil Rights Act prohibited age discrimination in employment and established the Iowa Civil Rights Commission to investigate an attempt to conciliate all charges of age discrimination. In addition, the Iowa Civil Rights Commission was empowered, if it was unable to settle a charge through conciliation, to hold hearings and if it found that a discriminatory practice had been engaged in to order cease and desist and award back pay. Mr. Evans ignored the available avenue of state relief. He did not a file a claim at any time with the Iowa Civil Rights Commission. Rather one year after he had filed his notice of intent to sue with the United States Department of Labor, he instituted an action in the Federal District Court in Iowa. The defendants in that action and petitioners here are the company Oscar Mayer and four of its management employees who were involved in the decision with respect to his retirement. Oscar Mayer and the other defendants in the trial court below move to dismiss the action for the reason that Mr. Evans had failed to file a claim with the Iowa Civil Rights Commission as Oscar Mayer contended was required by Section 14(b) of the Age Discrimination Act. Section 14(b) requires and it is found in page 2 of our brief and I quote “In the case of an alleged unlawful practice occurring in a state, which has a law prohibiting discrimination in employment because of age and establishing or authorizing a state authority to grant or seek relief from such discriminatory practice, no suit maybe brought under Section 626 of this title before the expiration of 60 days after proceedings have been commenced under the State Law unless such proceedings have been earlier terminated.” In the trial court in response to the motion to dismiss, respondent conceded that Iowa has an age discrimination law and that it has established an agency and is therefore within the terms of Section 14(b). Respondent also conceded that he at no time filed a charge with the Iowa Civil Rights Commission. The trial judge however denied the motion to dismiss, holding the filing of a charge with the state agency was not required by Section 14(b) as a prerequisite to instituting action in the Federal District Court. Rather he concluded that Section 14(b) gave an age claimant the option of determining whether or not to avail himself of an available state remedy. Trial judge certified his order and the appeal was taken to the Eighth Circuit under Section 1292(b). In its first decision, the Eighth Circuit reversed the trial court and held that Section 14(b) did require prior resort to the state agency. On rehearing, the Eighth Circuit changed its position and by divided panel concluded that while the issue was not free from doubt, the preferable view was that Section 14(b) gave an age claimant the option that he was not required to file with the state agency.
Harry A. Blackmun: This would not by -- just because one of the judges changes his mind --
James W. Gladden, Jr.: One judge changed his mind on the petition, after the petition for rehearing was filed; there was not an En Banc here. It is petitioner's position that Section 14(b) establishes a prerequisite with -- which must be complied with prior to instituting action in Federal District Court. It is our position that the language of the statute is clear and further that requiring resort to an available state remedy is completely consistent for the purposes of the Age Discrimination Act. As I just read the language to you, it specifically says where a state has a law and an agency to enforce that law, no suit maybe brought under Section 626 of this title before the expiration of 60 days after proceedings have been commenced under the state law.
John Paul Stevens: Mr. Gladden it doesn't say that proceedings must be commenced under the state law now, does it?
James W. Gladden, Jr.: It does not say it must be commenced, but it says no suit maybe brought and I think if you will look at Section 7(b), which deals with filing an action in Federal Court, it says no suit maybe commenced until notice is given to the Department of Labor. That particular provision using the same language “no suit maybe commenced” is uniformly accepted by the courts as requiring the filing of notice of intent to suit. Equally is important this language in Section 14(b) is titled precisely after language which appears in 706(c) of Title VII, which is also quoted at page 2 of our brief and reads almost identically. It says and I quote “In the case of an alleged unlawful employment practice occurring in a state, which has a law prohibiting the unlawful employment practice alleged and establishing or authorizing a state authority to grant or seek relief from such practice, no charge maybe filed by the person aggrieved before the expiration of 60 days after proceedings have been commenced under the state law.” Now that particular provision has been uniformly held to require a person to file a charge with the state agency before he may initiate proceedings under Title VII. Indeed this Court in decision Love versus Pullman agreed with that position of the lower courts and it is our position and just like in Title VII, requiring prior resort to a state agency clearly serves the purposes of the Age and Discrimination Act --
John Paul Stevens: You are arguing that the similar language had been construed and that we should follow that construction, but I was suggesting to you that the language itself was not entirely unambiguous.
James W. Gladden, Jr.: Well, I think –
John Paul Stevens: Because unlike Section 7(b) which says that until the individual has given the secretary notice there is nothing here that requires that the proceedings be commenced before the state agency?
James W. Gladden, Jr.: Well, I think that the language --
John Paul Stevens: You can read it either way is all I am saying.
James W. Gladden, Jr.: Well, I think you could technically read it either way, but I think when you look at the fact that the language was taken from Title VII and the consistent interpretation of Title VII, I think the far better reading and I think the more the reading which I think gives more meaning to the language of the section is one which needs it as a requirement and it's our position that this making it a requirement is every consistent with the purposes underlying the Age Discrimination Act, because the Act encourages conciliation of disputes rather than litigation of such disputes and by requiring resort to state agencies you maximize the possibility of a non-judicial resolution of such disputes. I think it's important to recognize that in 1976 and in 1977 over 5000 charges of age discrimination were filed each year with the United States Department of Labor and that as of end of fiscal 1977, there was a backlog of over 2000 cases before the Department of Labor, this with respect to the notices of intent to sue. In 1977, 86 cases were filed by the Department of Labor, but there were 433 individual actions filed. Since the Department of Labor has enforcement responsibilities under 82 different laws, it's not easy to, it's easy to see why this backlog is growing and this led to statements of congressional concern with respect to the handling of age discrimination claims during the consideration of 1978 Amendments. Now it is our feeling that given this problem, state authorities clearly have a necessary effective and viable means of assisting and handling this growing number of age discrimination complaints. There are at least 30 states which have both a law and have established authorities to deal with age discrimination complaints and therefore would be qualified for coverage under Section 14(b). Given the number of states which have acted in this area, we think they have a clear role to play. If the position of the respondent is accepted and a petitioner, excuse me, and an age claimant is given the option of whether or not to file with the state agency, he is in a position to ignore the state agency, file a notice of intent to sue with an overextended Department of Labor and then proceed immediately in the Federal Court. The Solicitor General in his amicus brief concedes that the state agency could help where it may have been a mistake, which led to the charge or where there maybe simple facts. However, the Solicitor contends that since a claimant could refuse to cooperate with a state agency and then go off to Federal Court that you should not require a claimant to file a charge with a state agency. It is our position that it is improper to determine whether or not a person should be required to file a charge with a state agency on the basis of whether or not he's willing to cooperate with that agency.
Thurgood Marshall: Is there anything in congressional history that supports you that you have go through the state first?
James W. Gladden, Jr.: I think Mr. Justice Marshall that if you look at the history which led to Title VII, it was very clear they wanted them to go to the state.
Thurgood Marshall: I'm talking about this?
James W. Gladden, Jr.: Right, when they adopted this provision as you recall, this statute when it was first proposed had a National Labor Relations Board type procedure then through various discussions it was amended and became a hybrid of section of some Title VII --
Thurgood Marshall: So the answer is going to be no?
James W. Gladden, Jr.: No, there's -- then toward the end of the consideration, a representative of organized labor and a representative of one of the state agencies raised the question with Congress with respect to the possibility that the Age Discrimination Act is then drafted would preempt states and preclude them from age discrimination enforcement and these two people suggested to Congress that they follow the Title VII procedure. Subsequent to that testimony, Section 14(b) was added to the act, that's all of the legislative history.
Thurgood Marshall: But nobody -- no man of Congress said a word about it?
James W. Gladden, Jr.: There's no recorded discussion on that provision either way. With respect to the question, I think this question of cooperation or lack thereof also could be made with respect to Title VII, yet no court has ever said that the reason that they -- even though a person could defeat state agencies acting in Title VII by failing to cooperate, he should be excused from going to a state agency. Now the Solicitor and the respondent both rely on this Court's opinion in Lorillard versus Pons decided last term where this Court held that there was a right to a jury trail for age discrimination claimants and they particularly pointed to the language in that case where this Court stated the Title VII was not a reliable guide to interpreting the Age Discrimination Act. However, the Court did recognize in that opinion that the age discrimination act was a hybrid taking some provisions from Title VII, taking some provisions from the Fair Labor Standards Act and that therefore they pointed out, and it's at page 582 of the opinion, this selectivity the Congress exhibited in incorporating provisions and in modifying certain Fair Labor Standards Act practices strongly suggest that but for those changes Congress expressly made, it intended to incorporate fully the remedies and procedures of the Fair Labor Standards Act. Now it's our feeling that Section 14(b) is clearly one of those exceptions. The language is taken directly from Title VII. There's no counterpart of that. There was no counterpart of that in the Fair Labor Standards Act. So we feel that --
John Paul Stevens: Can I interrupt with a question before the noon hour, so you may want to think on that over lunch. You have cited, and I think this Love against Pullman as holding that under Title VII, it's a jurisdictional requisite that you go to the state agency first. I don't see that the case really held that. Is there anything in the opinion that even says that?
James W. Gladden, Jr.: Well, I think the question there was whether or not you've had to file with the state agencies. As I understand it and basically this has been conceded by the Solicitor and the respondent conceded that that is the holding that has been attributed as being a holding of Love versus Pullman by lower courts and conceded in the briefs. What they held was that the deferral procedure whereby as I recall the opinion, where the deferral procedure whereby you could defer a case if it was a charge, as initially filed at EEOC then it could be deferred to the state and then comeback to the agency after 60 days and that satisfies the requirement of going to the state.
John Paul Stevens: It went to a question of timeliness I think, whether there was any question about it being filed in time?
James W. Gladden, Jr.: But I think it was also a question whether you had to file with the state as well. That's my -- as I say, this has been, the respondent and Solicitor both accept that proposition and the courts have uniformly accepted, lower courts have uniformly cited the Love versus Pullman case for the proposition, the prior resort -- that this Court agreed to prior resort that a state agency was required. With respect to the Lorillard opinion I might go on, this Court did also state in there that where Congress adopts a new law incorporating sections of a prior law that normally Congress will be presumed, have knowledge of the interpretation given to the incorporated law. There are two differences between the Age Discrimination Act and Title VII to which Solicitor and the respondent point. One being that you may file a concurrent charge with both the Department of Labor and a state agency under the Age Discrimination Act. We do not feel that the fact that you can file a concurrent charge means that the stage agency should be ignored. This was obviously Congress' effort to speedup the administrative process. And we do not -- we still feel that a state can play a meaningful role in disposing even of a charge which is filed concurrently with the charge filed with the Federal Agency. Likewise, I think the fact that if a Federal lawsuit is filed under the Age Discrimination Act, it supersedes the filing of a charge before a state agency. I do not think that means that a state agency should be ignored. This provision merely avoids duplication once a lawsuit has been instituted, but the fact that a state agency cannot conclude a proceeding does not mean it should not commence the proceeding, because if it is making meaningful progress there's no requirement that the lawsuit be immediately filed. The requirement is that the state be given a minimum of 60 days, a petitioner does not have to file until at least two years and if he alleges a willful violation, three years. So that if a state is making meaningful progress, he does not have to go to court.
Warren E. Burger: We'll resume there at 1 o'clock counsel.
James W. Gladden, Jr.: Thank you. [Luncheon Break]
Warren E. Burger: Counselor, you may proceed.
James W. Gladden, Jr.: Thank you Mr. Chief Justice and may it please the Court. Mr. Justice Stevens prior to a lunch you asked me a question with respect to Love versus Pullman. Having reviewed that decision over lunch, I think it is important to point out that the Court of Appeals there held that the charge of discrimination had not been properly filed with the EEOC in accordance with the requirements of the act and this Court then specified that there were two such requirements. One being 706(b), which under the amendments of 1972 became 706(c) and the other one being 706(d), which was dealing with the time within which it needed to be filed with EEOC. This Court then reviewed the procedure that was followed there, indicated in the facts there had been a referral to the state agency and the state agency had declined to act and then the Court held that the procedure complies with both the purpose, excuse me, complies with the purpose both of 706(b) to give state agencies a prior opportunity to consider discrimination complaints and of 706(d) to ensure expedition, excuse me, to ensure expedition in the filing and handling of those complaints. In this case, it has been assumed and presumed by all to have held that you had to have to take a prior resort to a state agency before you could file a charge under Title VII.
Potter Stewart: And the Love case simply held that there had been, there had been compliance?
James W. Gladden, Jr.: The Love case simply held that there had been in the procedure that was followed there. I think it's important to point out that recognizing the close relationship and the similarities between the Age Discrimination Act and Title VII, in February 1978, President Carter proposed a reorganization of Civil Rights enforcement and this was submitted to Congress. Congress did not act and therefore this reorganization will go into affect and pursuant to this reorganization, the enforcement of the Age Discrimination Act is transferred to the EEOC has of July 1, 1979. This transfer was being undertaken to avoid confusion and the overlapping enforcement. The EEOC has throughout its history, worked closely with state agencies in enforcing discrimination complaints and indeed in the 1972 amendments to the Title VII, if the EEOC is acting on a commissioner's charge as opposed to an individual charge, it still must refer that individual, excuse me, that commissioner's charge to a state agency before it may undertake its investigation. Iowa and most other states with age discrimination statutes have the same agency to enforce age discrimination, race and sex discrimination and to our feeling it simply makes no sense to treat two identically awarded statutory provisions to be enforced by the same agency in two different matters, this simply will not reduce the confusion to which the President was referring when he proposed this reorganization.
Byron R. White: But there's some difference between the procedures, isn't it?
James W. Gladden, Jr.: There's some difference, absolutely correct. The procedures are more streamlined, there's no --
Byron R. White: And you don't have to go the state before you go to the Federal now, do you?
James W. Gladden, Jr.: No you may go to the State.
Byron R. White: Isn't that quite a substantial difference? That certainly shows a good deal less deference to the state?
James W. Gladden, Jr.: But it shows less deference, but it doesn't mean it shouldn't go to the State at all, because what it does is, it sets up two parallel administrative lines to be pursued. If one starts taking meaningful action with respect to that, then it may resolve and attempt to conciliate the matter to avoid the necessity of litigation. I don't think the fact that you are filing concurrent -- you can file concurrently means that you can ignore one, which is what the respondent's position here is. The respondent's position is the claimant should -- the age claimant should determine whether he wants to go to a state agency or not. I don't think there is anything in the statutory pattern which suggests that the option should be given to him to determine whether or not --
Byron R. White: Must he file with the Federal people before he goes to court?
James W. Gladden, Jr.: Yes.
Byron R. White: And how long does he have once he files with the Federal people, how long does he have to wait?
James W. Gladden, Jr.: He must wait a minimum of 60 days.
William H. Rehnquist: But even under your theory, the claimant can forget about the state proceedings at the expiration of 60 days, can he not?
James W. Gladden, Jr.: He can at the minimum -- after a minimum of 60 days, but he doesn't have to go to court at the end of 60 days. He can wait for two years, so if the State has undertaken a meaningful investigation, is attempting to resolve the matter, there is no requirement that at the end of 60 days he goes to court, it simply gives him that option after 60 days.
William H. Rehnquist: Well that's all he is claiming here, I take it?
James W. Gladden, Jr.: No, what he is claiming here is he doesn't have to go to the State at all; that he never filed a claimant, he never has to file a claim with the state. That any age claimant does not have to file a claim with the State, he may ignore the State proceedings completely.
Byron R. White: He can't ignore the Federals, but he can ignore the State?
James W. Gladden, Jr.: That's his contention.
Byron R. White: And your contention is that of course he has to file with the Federal people, but he has to file with the State too?
James W. Gladden, Jr.: That's correct, because in terms of the numbers of complaints, in terms of the obvious purpose of the act is to have conciliation of these matters to avoid litigation. The effort was not to encourage --
Byron R. White: So, if he files with the Federal people and waits 60 days, he still is going to have to file with the State and wait 60?
James W. Gladden, Jr.: But he could make that filing contemporaneously and it's our feeling that this encourages -- what it does is, it establishes a state agency which has an ongoing relationship dealing with plans with respect to race and sex charges and other age charges, it enables those local people that have been dealing with claims to get into this picture and attempt to resolve this matter, so that we don't get into Federal litigation over an age discrimination complaint if at all.
Byron R. White: Was there any explanation in the legislative history as to why there was no requirement of resorting to State procedures before resorting to the Federal procedures?
James W. Gladden, Jr.: No, there is no legislative history in those terms with respect to the 1967 Act. It was very, as I say indicated that the legislative history with respect to Title VII was very specific that they wanted prior resort to the state agency and the 1967 Age Act we feel adopted that language and therefore adopted basically the position which was being expressed by the senators with respect to Title VII. I think it's important at this point to turn to the fact that although there was no change in Section 14(b) in the 1978 amendments to the Age Discrimination Act, the Solicitor and the respondent both point to the Senate report which was adopted by the conference committee, which concluded that Section 14(b) had not been intended to require prior resort to the State and that they merely been intended to give the claimant an option. It's our feeling that observations 10 years after the passage of an act clearly are not part of its legislative history. In addition, in 1978, as a Solicitor admits in his brief Congress amended the act to alter judicial decisions, which in Congress' view had been unfaithful to the act and they made specific amendments, both substantive amendments and procedural amendments. First of all, they made a substantive amendment with respect to retirement plans overruling this Court's opinion in the McMahon case. Secondly, with respect to the notice of intent to sue requirement, the Secretary of Labor since there had been a good deal of litigation with respect to what is a Notice of Intent to sue and what is not a Notice of Intent to sue they made a change saying that, making it simply if you had to file a charge with the Department of Labor. They also made a change with respect to how the statute of limitations was to be treated, saying that the statute could be told during the period of time when the secretary was undertaking conciliation. At that time the 1978 amendments were being considered, the only two Courts of Appeal which had addressed this question of Section 14(b) had both held that prior resort to a State agency was mandatory. Yet Congress made no change at all in Section 14(b) and the fact that they did not make the change while they made other procedural changes seems to me indicates that no weight should be given to the senate report, which was part of the legislative history. Now, the respondent and the Solicitor both ask this Court that even if this Court adopts the position that Section 14(b) establishes a prerequisite to the filing of an action under the Age Discrimination Act that this Court should also adopt a Doctrine of Equitable Modification whereby on a case-by-case basis, an individual age claimant should be able to show why it should be excused from this requirement. I think it's important to understand what this position entails. They are not asking for the polling of the statute of limitations to excuse a late filing, what they are asking is to be excused completely from the filing on a case-by-case basis. In effect, they are asking this Court to say that courts can rewrite the statute and drop the requirement altogether if the person can present sufficient factual circumstances to justify that. This will obviously create confusion as to wonder which circumstances there would be a private right of action and under which circumstance is a private right of action is preserved or not preserved. I think it's important to recognize that any age claimant will then attempt to posit to the court a set of circumstances, which would justify his being excused if he has not filed, which creates another issue and we feel simply encourages litigation, even in situations where courts have allowed polling in the statute of limitations, they have made every effort to develop a very much objective standard of polling, so as to avoid long requirement issues being raised as to whether or not this person should be excused from the requirement. We feel that in short, Congress did not change Section 14(b) at the time of its consideration of the 1978 amendments, even though numerous plaintiffs had their cases dismissed on those grounds. And because of the identity of the language between Title VII and Age Discrimination Act and the obvious benefits from state participation in handling the ever increasing numbers of charges in this area, we feel that this clearly indicates that Court should reverse the Eighth Circuit and remand this case to the district court with instructions to dismiss, thank you.
Warren E. Burger: Very well Mr. Gladden. Mr. Ryan?
Allan Ryan, Jr.: Chief Justice and may it please the Court. This is a hard case. It is hard because the statutory language is so ambiguous that it can support either alternative before the Court and because the petitioner has advanced appealing arguments in his brief, the reversal of the result reached below will alleviate congestion in the Federal Courts, but these arguments are more seductive than they are persuasive as I will show. First, let us keep matters in perspective. There is no question that a person with a complaint of age discrimination may vindicate his right in Federal Court. He is required to give the Secretary of Labor 60 days notice of his intent to do so, which is now a charge as a result of the 78th amendment and during that 60 days the act requires the secretary to attempt to bring about conciliation through informal methods of persuasion. The question here before this Court is whether the act also erects an additional procedural obstacle that the plaintiff must clear before he can go to Federal Court.
Warren E. Burger: It's fair to say from your opening remark, that if the Eighth Circuit had gone the other way you would not have brought the case here?
Allan Ryan, Jr.: I think by the time by the Eighth Circuit decided this case, there was a pretty pronounced conflict among the Circuits and I think that by itself would have justified certiorari.
Warren E. Burger: Conflict alone.
Allan Ryan, Jr.: Yes sir. The question here is whether the, in addition to giving the secretary 60 days to settle the case the complainant must also in effect give the State 60 days to do the same thing, if the discrimination took place in a State that has an agency setup to handle age discrimination claims. Now we are not talking here in this case about exhaustion of state remedies. Petitioner concedes that the most of the statute can require is that the claimant file his charge with the state agency and then wait 60 days. After that 60 days, the claimant has an unfettered right to go into Federal Court regardless what the state may or may not have done to his complaint in the mean time. That requirement if this Court holds that it is a requirement is we think a procedural monkey-wrench in the administration of this act that will serve neither the states nor the plaintiffs nor the Federal Courts.
Potter Stewart: If the Court finds that the language of the statute provides just that, however, the fact that it may be a procedural money-wrench is none of our business, is it?
Allan Ryan, Jr.: That if this Court finds that that is what Congress intended then we agree Mr. Justice Stewart, but I think this Court has the opportunity to construe an admittedly ambiguous statute, at least we --
Potter Stewart: It is you who admits ambiguous, you claim it is ambiguous and so does the respondent, but petitioner says it is very clear.
Allan Ryan, Jr.: That's what petitioner says.
Potter Stewart: So, it is not at all conceded that this is an ambiguous statute?
Allan Ryan, Jr.: No I don't, I am sorry; I don't mean to imply that it was.
William H. Rehnquist: You are relying on a presumption that Congress does not create procedural money-wrenches?
Allan Ryan, Jr.: I would like to relay on that presumption Mr. Justice Rehnquist, [Attempt to Laughter]. Experience shows that's not always a safe presumption to the rely on.
Thurgood Marshall: [Inaudible] that the complaining part only had probably a piece of paper work to state or –
Allan Ryan, Jr.: In this case.
Thurgood Marshall: In any case?
Allan Ryan, Jr.: I'm sorry I don't understand.
Thurgood Marshall: In order to do what petitioners says --
Allan Ryan, Jr.: Yes.
Thurgood Marshall: -- would it be satisfactory if the complainant merely files a piece of paper with the Wisconsin agency or Ohio or whatever it is, saying I've been done in?
Allan Ryan, Jr.: That is the question that the federal court will have to answer when the case ends up there.
Thurgood Marshall: That is what –
Allan Ryan, Jr.: That is -- in fact that is the question that has been much litigated where plaintiffs have gone to state agencies. They go into the Federal Court and the employer says now, wait a minute you've been to state agency, but did you file in time, did you file sufficiently, did you file on the proper form, did you comply with all of this state procedural requirements that the state act sets up. And then the federal –- the District Court has to decide that entire round of questions that's why we say it's really not so that to hold -- that the complainant must go to a state agency will alleviate any burden of the Federal Courts. It will do no such thing in our opinion. It will simply place a new round of questions before the Federal Court in that time when the plaintiff finally ends up there.
Warren E. Burger: And your friend has suggested that and I suppose we can judicially notice the fact that most claims of this kind are subject to the settlement via conciliation and negotiation. Now starting from that premise, if that's true and we are trying to look at the statute, it's not very clear, wouldn't it make sense that Congress would prefer to disperse this as I think he suggested among the states rather than having it all concentrated in the Federal Courts?
Allan Ryan, Jr.: Well I think they would much prefer to have cases like this settled rather than litigated and I think that's no question about it and that's -–
Warren E. Burger: It's the desirable without a dozen reasons?
Allan Ryan, Jr.: Without any doubt at all and I'm sure that given that choice every member of Congress would have said we favor conciliation and settlement. What they did in response to that concern in our view is they gave it to the Secretary of Labor. They said; “Thou shall not file a suit in Federal Court until you have gone to the Secretary of Labor and given him at least 60 days” and then it said to the Secretary of Labor, “You are obligated to make every attempt within the 60 days to settle this claim.”
Warren E. Burger: One way the Secretary of Labor might employ to settle it would be cooperation and coordination of state agencies, is it not?
Allan Ryan, Jr.: That is in his discretion one path that he might to choose.
Warren E. Burger: In other words, if the state has an agency which is established a record in the minds of the Secretary of Labor as being effective and prompt, reasonably so and the Secretary of Labor would perhaps hold his hand and say proceed.
Allan Ryan, Jr.: That is a choice that the act leaves open in the sense that it doesn't preclude it, but there are two points I think Mr. Chief Justice in that regard. One, not every state has an agency of this sort. In fact, the petitioner says 30 and I see no reason to dispute that. So that leaves 20 states without an agency of any kind. The second –-
Warren E. Burger: Well, if there is no agency, then there is no problem, is there?
Allan Ryan, Jr.: Well, there is a problem in the sense that if a plaintiff goes directly into Federal Court, the employer is free to raise the question and say is this the state which requires resort to state procedures and this puts another question in front of the federal court that it must act.
Warren E. Burger: If there is no agency that should be rather, a question readily answered?
Allan Ryan, Jr.: It's not readily answered as easily as it sounds, because there are cases in which Federal Courts have said, have opened the statute books and said there are some statutes in here that prohibit discrimination in one way or another. Does this fall within the type of statute that Congress had in mind?
Potter Stewart: But the question is not does the state law require a resort to state procedures. The question as I understand is if the state has a law prohibiting discrimination in employment because of age and establishing or authorizing a state authority the grant or blah, blah --
Allan Ryan, Jr.: That's correct.
Potter Stewart: It doesn't depend at all upon whether the state does or does not require?
Allan Ryan, Jr.: No that is correct Mr. Justice, it does not depend on that, but when the plaintiff goes into the Federal Court not having gone to any state agency at all, the employer is certainly entitled to raise as one of the questions that the Federal Court must decide, we are in a deferral state and this man is not to deferred. So, what we are saying is that to hold that an employee must go to the state agency as a general rule of law is not going to alleviate any burden on the federal courts. In fact, the predictable effect is going to be to further embroil Federal Courts in these matters that is just one aspect of this case, but it's important.
Potter Stewart: I suppose once it were decided in any district that that state does have a law or that state doesn't have a law, that would be the end of it for future cases, wouldn't it?
Allan Ryan, Jr.: Assuming that the law doesn't change in that state, yes.
John Paul Stevens: Mr. Ryan can –
Potter Stewart: It wouldn't be repeatedly.
Allan Ryan, Jr.: I would think not.
John Paul Stevens: Would you help me with a problem I was concerned with before lunch. Do you agree that Section 706(c) of Title VII, which I guess has identical language in it, does require a prior filing with the state in the Title VII case?
Allan Ryan, Jr.: I would answer that Mr. Justice Stevens by saying that has been the way, it has always been understood.
John Paul Stevens: And the government doesn't question that understanding?
Allan Ryan, Jr.: Well, certainly not in this case and I don't think that we do in other cases.
John Paul Stevens: And so what really we are being asked to do is to say that the identical language in two similar statutes has different meaning?
Allan Ryan, Jr.: Well, I would -- my answer was that is the way it has always been understood. Love versus Pullman did not pass on that question. In fact, I think a proper reading of Love would indicate that the plaintiff is required to go the EEOC before he goes to Federal Court, something that's perfectly –
John Paul Stevens: I didn't think Love really squarely decided, but it seems to me, this is something everybody is assuming for purposes of the decision in this –
Allan Ryan, Jr.: Yes.
John Paul Stevens: And so, really what it boils down to is, you are asking us to construe precisely the same language in similar statutes in different ways?
Allan Ryan, Jr.: Yes, I won't. I cannot shy from that, that's true.
Thurgood Marshall: Without pertinent legislative history?
Allan Ryan, Jr.: Well, the difference is that in Title VII there is an unmistakable legislative history that shows that prior resort to the states was required. Senator Humphrey and Senator Dirk said on both sides of the isle said this is what we intend and perhaps as a result of that then anything else.
Thurgood Marshall: Well, according to this when you abide that, you also abide that legislative history?
Allan Ryan, Jr.: In Title VII.
Thurgood Marshall: Yeah, he says you abide and obey it too?
Allan Ryan, Jr.: I disagree with the petitioner on that score.
Thurgood Marshall: Why not?
Allan Ryan, Jr.: We are talking here about --
Thurgood Marshall: You are taking to the whole thing, aren't you? You say it's a same section?
Allan Ryan, Jr.: It's not the same section. It is -- we admit as we have to that the language is similar.
Potter Stewart: It is certainly not identical language?
Allan Ryan, Jr.: It is not identical.
Potter Stewart: It's the difference in the language?
Allan Ryan, Jr.: It is similar. It is not identical, correct. And as you pointed out before lunch sir, we are construing a separate statute here. We are not construing Title VII in this action. We are construing the ADEA and there is no legislative history in the ADEA, which speaks specifically to this point.
Thurgood Marshall: My brother Steven says is that, we say that these two sections are not identical, but are so also similar that we can't decide the difference between the two and however we do find that one means something different from the other. Now, I can write that much if I was writing an opinion, but when I got to citing to some, I'd be in a lot of trouble.
Allan Ryan, Jr.: I would be happy to give you something to cite.
Thurgood Marshall: Alright.
Allan Ryan, Jr.: The structure of the ADEA is different from the structure of Title VII in terms of utilizing state remedies and utilizing federal remedies. There are a number of distinctions as we point out in our brief where Congress clearly intended something different for ADEA and part of the reason as Senator Javits and others mentioned in the debate is that they were most unimpressed with the conduct of many state agencies. They felt that the state agencies and this is only two years after Title VII or three years after Title VII had passed that many of the state agencies simply were not equipped to deal with these discrimination complaints. Now, as a result of that, they made unmistakable changes in ADEA. For example, they did not require a right to sue letter from the federal agency. The plaintiff can go into Federal Court 60 days after he notifies the secretary without any further ado. They did not require for example, that any state remedy be resorted to first. They showed as my opponent mentioned in his argument, the ADEA does show less difference to the states than Title VII. There is no question about it. So, that is why -- that is my answer to that question, that while Congress may have used similar language this Court is certainly free to look at the acts themselves and see that the structure is different.
Thurgood Marshall: And Aged act did not have any difference to the states?
Allan Ryan, Jr.: The -- I am sorry sir.
Thurgood Marshall: The act we have here was not intended to give any difference to the state?
Allan Ryan, Jr.: I would not say it was intended to give no difference. It was intended to give a, well I am sorry if by deference you mean a mandatory deferral to state procedures then I agree it was not intended to do that. It was intended to give the state some opportunity if the plaintiff chose to go there.
William H. Rehnquist: They would have that without this section, wouldn't they?
Allan Ryan, Jr.: That the plaintiffs would have been free to go--
William H. Rehnquist: Yeah.
Allan Ryan, Jr.: They would have but then it would have gotten into some of the problems which this Court mentioned in Love versus Pullman which of course, which yet to be decided in 1967. For example could he go to a state agency and then go into a Federal Court if the state agency found no probably cause or if the state agency for that matter found no discrimination whatever, would he have res judicata problem. There were any number of questions that could readily be imagined if this statute did not address the proper relationship between state and Federal agencies, so by passing Section 14(b) what they were saying is you can go to the states if you want to, we don't want to shut off the states all together, but it is our position Congress speaking, it is our position that after 60 days you are free to vindicate whatever rights you have under this Act. So I think in that sense it was not clear, and certainly not 1967. I think that, what we are talking about here, this Act, the ADEA has an unusual number of procedural difficulties and any look at the reported decisions I think will bear that out. We are asking this Court to simplify this Act, not to complicate it. It can construe this ambiguity as we say reasonably either way.
Warren E. Burger: We simplify it, no matter what we do, if we decide the case?
Allan Ryan, Jr.: I respectfully disagree sir. I think that while if you reverse the judgment below you will have answered the question. You will not have simplified the administration of the Act, because every Act henceforth will have to answer the number of questions that I raise namely was the compliance with the state procedures in this case sufficient. It's just going to --
Warren E. Burger: As conditions change in the various states it's a simple matter of Congress to modify this problem if they think a problem flows--
Allan Ryan, Jr.: It is simple for Congress to modify it in either way.
Warren E. Burger: Yeah.
Allan Ryan, Jr.: And certainly if Congress does not like what this Court says, it can change it, it did that in McMahon and it can do that in this case if it wants to, but our position is that given that choice to complicate the Act or to simplify it that this Court should simplify it and if Congress wants to change it that’s up to Congress, but until that time Congress -- the Act the purpose of this Act gives individuals a right in Federal Courts to vindicate claims of age discrimination should be supported by this Court and not submitted to a continuing round of procedural questions.
Lewis F. Powell, Jr.: Was enforcement of ADEA transferred last summer to the EEOC?
Allan Ryan, Jr.: It becomes effective this coming summer July 1st 1979, yes sir.
Lewis F. Powell, Jr.: So that the EEOC will administer the section, that issue here today as well as Title VII?
Allan Ryan, Jr.: Yes sir, that's my understanding.
Warren E. Burger: Very well Mr. Ryan. Mr. Bennett?
Mark W. Bennett: Mr. Chief Justice and may it please the Court. The narrow issue before the Court today involving the problem of statutory construction of Section 14(b) of the Age Discrimination in Employment Act has been considered by five Courts of Appeals, four within the last year. The court below, the holiday opinion which is en banc unanimous from the Third Circuit reversing the previous decision in Goger and the Gabriele decision of the Sixth Circuit held that it is an optional prerequisite. The contrary views --
Warren E. Burger: Is that the case where the Court of Appeals relied on the legislative history largely?
Mark W. Bennett: Yes Your Honor.
Warren E. Burger: The legislative history, 11 years after the event, is that the one?
Mark W. Bennett: Ten years after it Your Honor.
Warren E. Burger: Ten. Perhaps different members of Congress who were not even members of Congress when the act was passed?
Mark W. Bennett: As the Secretary pointed out in the brief for Mr. Chief Justice, six of the members were--
Warren E. Burger: I said it could be, not were?
Mark W. Bennett: Yeah it could be.
Warren E. Burger: There could be an entirely new team?
Mark W. Bennett: Some of them were in fact in the team, some were holdovers. But the collective wisdom of the holiday Gabriele and the Court Bureau established three major principles. One is that Section 14(b) of the ADEA is not the mere image of Title VII. There are some differences which I will get to and I think those differences are important and affect the interpretation to the given Section 14(b). Secondly the legislative history of the ADEA is not instructive. It is perhaps silent on the proper interpretation to the given Section 14(b) and finally that absent congressionally expressed intent to the contrary Section 14(b) should be construed to assist the intended beneficiaries of the Act. Turning to the first proposition, the Section 14(b) is not the mirror image of Section 706(c) of Title VII. Throughout the litigation in this case petitioners would have us believe that the mere incantation of the analogy that Section 706(c) resolves the matter. I think it takes additional analysis, the language is not identical. Under Section 706(c) of Title VII, the appropriate terminology is no charge maybe filed, “With the EEOC.” That gives a State a mandatory 60-day deferral opportunity to deal with the alleged discrimination. All Federal action is precluded and the filing of suit is likewise precluded. On the other hand under Section 14(b) of the Age Discrimination Employment Act no suit maybe brought. However as Mr. Justice Rehnquist previously recognized, this allows for a multitude of opportunities. For example, there can be simultaneous jurisdiction where the state's deferral agency and the Department of Labor go at it simultaneously or the state can go first or that the Federal government can go first or the Federal government can go first or the state can go first, they haven’t clarified it in the statute. Now the effect of the difference in the language is this. Under Title VII the states have exclusive jurisdiction for 60 days, under the ADEA there is no exclusive jurisdiction, there is either simultaneous or consecutive in any order that the claimant may go. He may go to the state first or he may go to the Federal first.
John Paul Stevens: But you do agree that under Title VII even if the complaining party does not file anything with the State, he still must wait 60 days before he can file a charge with the EEOC, you agree with that? In other words, the 60 day waiting period is not contingent on an actual filing with the state under Title VII?
Mark W. Bennett: I am not sure that situation would arise because of this Court’s decision in Log which said or at least it seemed to intimate that you have to go to the state agency first. In other words, I guess the answer to your question is EEOC will not accept jurisdiction until the state has its 60 days. It is a mandatory exclusive jurisdiction.
John Paul Stevens: Then if that’s fair reading of that language as mandatory why except for that there was to be no charge and no suit, why doesn’t dramatically the same language lead to the same result in the other statute? We have an English grammar problem here. Once you’ve agreed that it reads that way in one statute, why doesn’t it read the same way in the other statute?
Mark W. Bennett: Well because in Title VII the, I think they specifically said that the state must be given the 60 day period. It's not the language of 706 but the language of another section in Title VII, just like in the ADEA it's not the language of Section 14(b), but the language of another section. In other words, the jurisdictional prerequisites in the ADEA are set forth in Section 7(d), the notice with the Department of Labor.
John Paul Stevens: What is the section in the Title VII that requires prior resort to the state agency then?
Mark W. Bennett: I don’t know the answer to that question.
John Paul Stevens: But you say it’s not this section? I was under impression from all the argument that this is the source of the requirement they go to the state first. But then you are saying the same language doesn’t impose the similar requirement --
Mark W. Bennett: No Section 706(c) has been interpreted to me and I am wrong.
John Paul Stevens: Yeah.
Thurgood Marshall: This section only implies to states like ours?
Mark W. Bennett: Well that’s also true with Section 706(c). The sections only come into play if the state has a Civil Rights Agency.
Thurgood Marshall: But I mean the old section not just this bottom, it starts all. It says in cases like Iowa, this will apply that’s what it says. Well, it doesn’t that lead some credence to the fact that they do expect to use the State machinery?
Mark W. Bennett: Well, I think if they had a --
Thurgood Marshall: We’re making a separate rule for States that have State machinery, from states that don’t have state machinery, isn’t that what 14(b) is?
Mark W. Bennett: Well I think 14(b) says you have option of going to the State.
Thurgood Marshall: But let me read it says, in the case of alleged age discriminate occurring in a state which has a law, well what is the provision to State it does not have a law?
Mark W. Bennett: In a state that does not a have law Mr. Justice Marshall, there’s no state exhaustion requirement?
Thurgood Marshall: The whole point is that this could be, once you get into State that does have such law, you have to the go to the State machinery first?
Mark W. Bennett: That could be, that’s obviously not the interpretation that worried you.
Thurgood Marshall: There have to be, obviously.
Mark W. Bennett: No, Your Honor.
Harry A. Blackmun: Mr. Bennett, did you argue the case below?
Mark W. Bennett: Yes sir.
Harry A. Blackmun: Did you have an oral argument on the rehearing petition when it was granted?
Mark W. Bennett: No, Your Honor.
Harry A. Blackmun: Done purely on briefs?
Mark W. Bennett: It was done on the petition for rehearing filed by myself and the --
Harry A. Blackmun: What do you – what prompted Judge Smith to change his mind, the appearance of the Secretary of Labor?
Mark W. Bennett: Mr. Justice Blackmun, I believe it was the holding, the subsequent inter -- there was a subsequent holding by Gabriele of the Sixth Circuit in between the time when we orally argued the case and the time when we file the petition for rehearing. So the obvious assumption would be that it was the impact of the Gabriele decision on the Eight Circuit.
Harry A. Blackmun: Of course that had no impact on Judge Wright though, did it?
Mark W. Bennett: Judge Wright today does not been persuaded, no.
Potter Stewart: The Sixth Circuit was Judge Smith’s circuit, he was the District Judge in Ann Harbor, Michigan when he -- was this is this Talbot Smith?
Mark W. Bennett: It was Talbot Smith sitting by designation from Michigan.
Potter Stewart: Yes, Sixth Circuit.
Mark W. Bennett: In any event Title VII --
Harry A. Blackmun: The Eighth Circuit Judges were divided?
Mark W. Bennett: Yes, one-one. In any event Title VII strongly emphasized the administrative process. The ADEA gives less difference to the administrative process than does Title VII. An example of that would be under Title VII, -- excuse me, under Title VII, the state agency would have 60 days and then EEOC would have a 120 days and at the time the ADEA was passed, the EEOC either had to make finding of probable cause or else mediate the action but under the ADEA for any reason whatsoever after the filing of the 60 days the complainant can cutoff the State Administrative Agency. Under Oscar Mayer’s view of Section 14(b), they still get a different result in under Title VII because under Title VII, excuse me, they would still get a different result because under Title VII you have to go to the States first but there’s no requirement if you hold that Section 14(b) as mandatory that we’d have to the States first. In other words you may go -- or may proceed simultaneously and if you proceed simultaneously there’s no exclusive jurisdiction in the State agencies. It’s hard to believe the Congress would have intended every claimant to make a prior resort to the State even after going to the Secretary of Labor where the case was unable to be conciliated and then go back to the State for another attempt, when the first attempt was fueled before they could file a suit. I don’t think that’s what this section entitled. This section is really an anti-preemption section. They wanted to make sure and show the states that Section 14(b) did not preempt the State’s rights to have laws that interpret this matter in the same way as the ADEA. In fact I think the construction we are urging would be an incentive for State’s civil right agencies to have stricter enforcement to encourage claimants to return to the State.
William H. Rehnquist: There has been anti-preemption provisions though in civil rights acts that are far -- simply say nothing in this actual preempt state provisions that go further, without saying being as expressed but going into the state procedures as this one does?
Mark W. Bennett: That certainly would have been a clearer way to do it but I think the section, you know, we would have known the answer had they done that?
William H. Rehnquist: We would not be all here?
Mark W. Bennett: We wouldn’t be here, correct.
William H. Rehnquist: We might, but you wouldn't. [Attempt to Laughter]
Mark W. Bennett: It’s interesting to note under the legislative history that there is a total lack of legislative history under the ADEA where under Title VII the legislative history is cleared by the remarks of Senator Humphrey that it was intended to go to the States. In fact I cited in a footnote in my brief that at least two courts and Senator Javits felt that the courts would be the way to resolve actions under the ADEA rather than the administrative bureaucracy hence the streamlining of the process. I would like to comment briefly on the legislative history cited by the petitioners in this matter. They cited the testimony of Ed Conway of New York Human Rights Commission and supported their position, but the last phrase on page 23 of their brief is, that you wanted to avoid to the greatest extent possible, the coming into being of necessary duplicities effort, I would suggest that the construction they urge that would require simultaneous or consecutive filings with both the State and Federal agency, would contribute to duplicitous resources at the Federal and at the State level.
Warren E. Burger: Now couldn't they solve it as I have read that some States have solved it that when the papers are filed with the state agency, they notify the Federal and vice-versa and they work on a coordination that if one’s going ahead the other one’s state is examined. Isn’t that administratively, any relatively easy problem to solve?
Mark W. Bennett: That would work in the case of concurrent filings where the filings took place at the same time but if an individual chose to file with the Department of Labor first then the Department of Labor is under a mandate to use those 60 days and then maybe on the 61st day if that individual is within his statute limitation on the state would then file with the state and it would be too late for that kind of cooperation that you suggest.
Warren E. Burger: Why would it be too late, the Secretary of Labor or no other agency in the government work so swiftly that it would have gone very far, it couldn’t do work coordination on the 61st day?
Mark W. Bennett: But in any event the claimant could file suit in the Federal Court on the 61st day because that’s all the time the statute gives.
Warren E. Burger: Well, there is no, under the statutory scheme that can’t be avoided by coordination I agree?
Potter Stewart: Well, you need not go to the Federal administrative agency at all?
Mark W. Bennett: Under this statute?
Potter Stewart: Under this statute.
Mark W. Bennett: That is incorrect.
Potter Stewart: Can you file a suit?
Mark W. Bennett: No, there’s a 68 waiting period with the Department of Labor as well as a 60 day waiting period with any State Civil Rights Commission.
Potter Stewart: But he doesn’t have to get a right to sue letter?
Mark W. Bennett: There’s no right to sue letter. He controls the time in which he wishes to file a suit rather the opposite in Title VII, you have to get the right to sue letter but you still have a 60 day waiting period with the Department of Labor. Before I touch on the final argument just very briefly, I’d like to address the question of noncompliance with section 14(b) and should it be subject to equitable considerations. The lower court decisions on this issue which held that 14(b) was mandatory also allowed the principle of equitable modification and I suggest that this case if the Court goes against us on the 14(b) argument is the kind of case where the district court judges should be allow to exercise their discretion because we relied under the statements of the Department of Labor that we did not have to comply with Section 14(b). Thank you.
Warren E. Burger: Very well. Do you have anything further Mr. Gladden?
James W. Gladden, Jr.: May it please the Court. I would add just briefly that the major changes administratively that were made were in response with the EEOCs handling of charges under Title VII. What they did away with was the notice of right to sue, the fact that the agency had to make a finding of reasonable cause, those are the things that were changed, they also gave this enforcement to the Department of Labor instead of the EEOC, those are the things that were changed with respect to going to a state or not going to state, the language of 14(b) is identical. And I might also point out than with respect to filing a charge with the Department of Labor, the section 7(b) provides that if you do go to -- if you’re in a state which is covered by 14(b) you have 300 days to file your charge to the department, you notice to intent to sue are now a charge to the Department of Labor. If you’re not in a State covered by 14(b) you only have a 180 days. Clearly that’s giving deference to the State. It’s encouraging the party to go to the State because it extents its period of time over which you can come to the Federal Government if the state doesn’t start moving along in a meaningful way. That 180, 300 day pattern is exactly the same pattern that is followed under Title VII. So with respect to the States and the effective filing a charge or notice to the state, the pattern is identical in the Age Discrimination Act to Title VII. The changes that were made had to do with what the EEOC had been required to do under Title VII as opposed to what the Department of Labor was required to do and that was an effort to speedup the administrating process primarily at the Federal level. Thank you very much.
Warren E. Burger: Thank you gentleman. The case is submitted.